The Issue Whether Miami-Dade County School Board ("MDCSB") had just cause to suspend and recommend the termination of Respondent, Carla McCray's ("McCray" or "Respondent"), employment for the reasons set forth in the agency action letter dated December 20, 2018.
Findings Of Fact MDCSB is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, McCray was employed by MDCSB as a school security monitor at MSHS, a public school in Miami-Dade County, Florida, and served in that capacity since 1998. Respondent's employment with MDCSB is governed by Florida law, MDCSB's policies, and the collective bargaining agreement ("CBA") between MDCSB and the United Teachers of Dade Union. As a school security monitor, McCray's duties included assisting students, assisting with student/staff altercations, protecting the school from intruders, and to generally protect the safety of everyone in the school. The proposed discipline is based upon McCray's repeated refusal to submit for a fitness-for-duty evaluation after repeated instructions to do so. Facts Giving Rise to the Fitness-for-Duty Evaluation Request In March 2018, the Office of Professional Standards ("OPS") for Miami-Dade County Public School ("MDCPS") received a call from Marian Lambeth, the Chief of the Professional Practices Commission of the Florida Department of Education. She advised OPS that McCray sent the Commission correspondence entitled "Criminal Misconduct Complaints and Willful Violations," which was 322 pages. The lengthy, repetitious, and disjointed correspondence describes a variety of alleged "cyber internet crimes," including inter cyber-bullying, cyber- harassment, and cyber-stalking. The voluminous "complaint" lists alleged infractions dating back for at least ten years. This bizarre document caused OPS and District Director Carmen Molina to be concerned for McCray's well-being and essentially put McCray on the District's "radar." McCray previously made similarly odd computer-related complaints in December 2016 to Assistant Principal Dwight Arscott. She told him people were taking control of computers she was using and logging her out of District computers. Mr. Arscott contacted the MSHS Information Technology Services ("ITS") department and also school police. McCray's complaint was investigated and found to be without any merit. McCray again made similar complaints to Mr. Arscott in January 2017, and this time he referred her to school police because, in McCray's opinion, ITS had not done a sufficient job of investigating the matter. Again, no problem was discovered regarding McCray's district-issued computers or accounts. At the start of the 2018-2019 school year, McCray expressed to Mr. Arscott that she did not feel safe using school email systems and requested that he contact her through her personal Yahoo email address. She expressed that she did not want to use the District email because she was being cyber-bullied and harassed and did not feel safe using it. As a result she was experiencing "distress." McCray memorialized her concerns in emails she sent to Mr. Arscott and other MSHS administrators beginning in August 2018. In one such email, Respondent stated that she was experiencing "overwhelming of emotional, psychological and spiritual distressed." She also stated, "I wasn't feeling in the best of wellness, for the same aforementioned reasons." She also requested a meeting with Mr. Arscott after her "wellness recovery." Mr. Arscott accommodated Respondent and gave her some time off. At the meeting she requested a personnel investigation, and Mr. Arscott explained to her that that process did not apply to her computer-related complaints. The emails from McCray caused Mr. Arscott to worry about Respondent's well-being. Additionally Mr. Arscott was concerned that a security monitor was making these complaints, because security monitors are responsible for protecting the school and alerting administration to potential security issues. MSHS is charged with educating and supervising over 3,000 students. Security monitors are relied upon to be the administration's "eyes and ears" at the school. MSHS Principal Benny Valdes shared the same concerns regarding McCray's communications because her self-described "emotional distress" could affect the safety of everyone at the school, including the students, staff, and McCray. On September 20, 2018, at 6:59 p.m., McCray sent yet another email to Mr. Arscott complaining of harassment, bullying, stalking, discrimination, safety violations, and security violations. She also claimed to be experiencing medical difficulties, including abrupt panic attacks, breathing problems, chest pain, and having to depart work early to immediately seek medical attention. The verbiage of the email is jumbled, disjointed, and nonsensical. Mr. Arscott was concerned, particularly by the alleged "safety concerns," because they were not detailed in the email. When he attempted to speak with McCray about her allegations, she provided no details. Mr. Arscott knew McCray left school a couple times to see doctors and his concerns were growing. In her September 20, 2018, email, McCray copied numerous other public officials and entities having nothing to do with MDCPS, including the Miami-Dade State Attorney, the FBI, Governor Rick Scott, and Senators Marco Rubio and Bill Nelson. On September 21, 2018, at 9:49 p.m., a similar email was sent to Mr. Arscott once again and a similar list of public officials was copied by McCray. In this email McCray requested copies of the documentation pertaining to her computer complaints. Apparently the ones she had been previously provided by Mr. Arscott were not "visually sufficient" for her. On September 24, 2018, at 5:39 a.m., McCray sent another similar email to Mr. Arscott and, once again, copied a seemingly random list of public officials. Then again on September 26, 2018, at 5:40 a.m., McCray sent another similar email to Mr. Arscott, as well as various public officials. Mr. Arscott estimated that there were 30 or more of these repetitious and bizarre emails sent by McCray between September 20 and 26, 2018. At or about the same time one morning, McCray also texted Mr. Arscott with her concerns 46 times between approximately 5:00 a.m. and 6:00 a.m. Trying to address all of McCray's repetitive requests, sent virtually at all hours of the day and night, took Mr. Arscott away from his other duties at the school. As a result of these communications and their concerns for both Respondent and the school, both Mr. Arscott and Mr. Valdes supported the decision to send Respondent for a fitness-for-duty evaluation. Mr. Valdes also stated that he would not be comfortable with Respondent returning to MSHS. The Fitness-for-Duty Process School Board Policy 4161--Fitness for Duty, applies to noninstructional personnel, which includes security monitors. The fitness policy refers to the applicable CBA. Article XXI(F) of the CBA dictates that at the request of administration, an employee can be sent for a psychological or psychiatric examination or test upon a written statement of the need for such an examination. District Director Carmen Molina testified that the District was first alerted of concerns for McCray's well-being when Marian Lambeth called and provided OPS with a copy of McCray's 322-page complaint in March 2018. These concerns were amplified when McCray began sending emails to MSHS administration describing various forms of distress she was experiencing. Much like Mr. Arscott and Mr. Valdes, Ms. Molina was concerned that a security monitor was making these complaints and allegations. Understanding the role of security monitors at a school, she too supported sending McCray for a fitness-for-duty evaluation. As a result of the administration's well-founded concerns, on September 27, 2018, a Conference for the Record ("CFR") was held with McCray and two union representatives concerning sending McCray for a fitness-for-duty evaluation. When McCray arrived for the CFR, Ms. Molina handed her an envelope that contained a written description of why she was being sent for a fitness evaluation. Ms. Molina explained to her both in writing and verbally that she was being sent for the evaluation because of her repeated complaints about cyber- bullying and her claims of emotional, psychological, and spiritual distress. The reasons for the evaluation were also memorialized in the CFR summary Ms. Molina drafted and presented to McCray. At the CFR, McCray wanted the meeting postponed for lack of union representation, yet this claim had no basis because two union representatives were present. McCray asked Ms. Molina what the basis for the fitness determination was and Ms. Molina advised her that it was because of the frequency and the content of the emails she was repeatedly sending. Ms. Molina even presented her with an email dated September 26, 2018, and asked McCray if she sent it. McCray replied that "it looked familiar." During the CFR, Ms. Molina directed McCray to go to the fitness-for-duty evaluation and provided her with a list of clinical evaluators from which to choose three. McCray refused to sign this referral document, as well as the written basis for the fitness determination. It was explained to her that going to the fitness-for-duty evaluation was a condition of her continued employment and that if she refused, it would be considered insubordination. McCray was given until September 28, 2018, to call Ms. Molina with her selected evaluators, but she never made the call. After this meeting, McCray was placed on "alternate assignment" and remained at home with full pay. When McCray did not call Ms. Molina as directed to schedule the fitness evaluation, another CFR was scheduled for October 4, 2018. Ms. Molina testified that McCray was given more than two day's notice for this second CFR and emailed the notice to her preferred Yahoo email account. McCray did not attend this CFR. However, the written summary of this CFR, which once again contained written directives to schedule the fitness-for-duty appointment, was sent to McCray. McCray failed to select her choices of evaluators for the second time and, as a result, a third CFR was held on October 15, 2018. Despite her refusal to participate in the fitness process, McCray continued to send a barrage of bizarre emails. McCray attended this CFR and was once again directed by Ms. Molina to go for a fitness evaluation. This was the third time McCray received these directives in writing and the second time Ms. Molina gave them verbally. During this CFR, McCray was once again presented with a list of doctors to choose from and she again refused to sign it. McCray was also advised that her continued refusal to go for the fitness evaluation was gross insubordination. McCray repeatedly said, "I heard you" when Ms. Molina spoke to her. In early November 2018, there was a fourth CFR held with McCray that she attended and was once again given a chance to participate in the fitness process. Again, she refused. On November 29, 2018, McCray was given a fifth and final opportunity to participate in the fitness-for-duty process at her meeting prior to board action. It was explained to her by Ms. Molina, Ms. Molina's supervisor, Dr. Jimmie Brown, and then Associate Superintendent Joyce Castro that she would have to go for the fitness evaluation or be terminated. McCray still refused to go. McCray was also presented with an entire copy of her disciplinary file by Ms. Molina. On December 18, 2018, McCray was emailed and sent via certified mail a letter that informed her that her termination was going to be recommended at the December 19, 2018, MDCSB meeting. On December 20, 2018, McCray was emailed and sent via certified mail a letter that informed her that MDCSB had taken action to terminate her employment. McCray's Arguments McCray argues that termination is inappropriate because she did not receive sufficient advanced notice of the first CFR, as required by the CBA, and she was not given a valid reason for the need for the fitness-for-duty evaluation. McCray also argues that MDCSB's failure to provide a Notice of Specific Charges prior to her termination deprived her of due process. Notice of the First CFR Article XXI, Section 1, A(3) of the CBA governing the terms of McCray's employment provides that, "Employees shall be given two days' notice and a statement of the reason for the conference, except in cases deemed to be an emergency." MDCSB alleges that the September 27, 2018, CFR was an emergency justifying the lack of advance notice. McCray contends that there was no emergency because MDCSB became concerned about McCray's mental health after receiving her 322-page complaint letter in March 2018. Although the March 2018 complaint raised concerns regarding McCray's well-being and mental stability, it was her ongoing and ever-increasing barrage of bizarre, and often incomprehensible, emails to numerous individuals in which she expressed concerns about her own safety and stability that escalated the situation to an emergency. Despite the lack of advanced notice, McCray had two union representatives present at this first meeting to assist her with the process. Accordingly, MDCSB was justified in calling the initial emergency CFR without two days' advance notice. Reason for the Evaluation Request Contrary to McCray's assertion that she was asked to submit to a psychological evaluation based solely upon "too many emails," MDCSB repeatedly explained verbally and in writing to McCray that it needed the evaluation based on the volume and content of those emails. In the emails, McCray complained of unspecified harassment, bullying, stalking, discrimination, unspecified safety violations, and security violations that she claimed were causing her abrupt panic attacks, breathing problems, chest pain, and causing her to seek medical assistance. At each CFR and in the CFR summaries, McCray was advised that MDCSB wanted her to participate in a fitness-for- duty examination because of her own complaints of school-related "emotional, psychological, and spiritual" distress. Notice of Specific Charges McCray points out that she was not provided with a Notice of Specific Charges until February 18, 2019, only 11 days prior to the final hearing and approximately two months after MDCSB's termination recommendation. Due process required that McCray be provided notice and an opportunity to be heard prior to suspension or termination and the right to a post-termination evidentiary hearing. Prior to termination, McCray was given five notices of CFRs and at least three CFR summaries explaining the need for her to participate in a fitness-for-duty evaluation, and that failure to do so was a violation of MDCSB policy and insubordination. McCray was also notified on December 18, 2018, by email and in writing, that MDCSB intended to recommend her suspension without pay and dismissal for just cause, "including but not limited to: gross insubordination; and violation of School Board Policies 4161, Fitness for Duty, 4210, Standards of Ethical conduct, and 4210, Code of Ethics." Despite being provided multiple opportunities prior to termination to explain her basis for fearing for her safety and refusal to attend a fitness-for–duty evaluation, McCray refused to do so. After the MDCSB meeting on December 19, 2018, at which McCray was recommended for suspension without pay and dismissal, she was provided notification of the action by letter dated December 20, 2018, which mirrored the basis for discipline contained in the December 18, 2018, letter. This notification also provided her with notice of how to contest the proposed action. MDCSB policies do not specify a time frame within which a Notice of Specific Charges must be issued for non- instructional employees. At no time prior to the issuance of the Notice of Specific Charges did McCray request any further explanation. There is no record of any pre-hearing discovery request by McCray regarding the specific factual or legal basis for the termination. It should be noted that the Notice of Specific Charges identifies violations of MDCSB Policy 4161— "Fitness for Duty" and "Gross Insubordination"--the same reasons for proposed discipline identified prior to the MDCSB action of December 19, 2018. McCray was provided a full evidentiary hearing at the final hearing of this matter. McCray received all pre and post-termination due process to which she was entitled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Carla McCray guilty of misconduct in office and gross insubordination and upholding her termination from employment. DONE AND ENTERED this 3rd day of June, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2019. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Catherine A. Riggins, Esquire 18520 Northwest 67th Avenue, Suite 105 Miami, Florida 33015 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast 2nd Avenue, Suite 912 Miami, Florida 33132-1308 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether just cause exists for Petitioner, Polk County School Board, to terminate Respondent’s employment as a teacher.
Findings Of Fact The School Board is the duly-constituted governing body charged with the duty to operate, control, and supervise public schools within Polk County, Florida. See Art. IX, § 4(b), Fla. Const.; and §§ 1001.30 and 1001.33, Fla. Stat. At all times material to this matter, Respondent was employed by the School Board as a classroom teacher at Lake Shipp Elementary School and held a professional services contract pursuant to section 1012.33, Florida Statutes. Respondent has spent the last 21 years as a teacher in Polk County. She has taught at Lake Shipp Elementary School since 1998. Respondent has not been the subject of any disciplinary actions by the School Board prior to this matter. On May 26, 2017, School Board Superintendent Jacqueline M. Byrd issued a letter (the “Termination Letter”) notifying Respondent that she was immediately suspending her from her teaching position and that Superintendent Byrd would recommend Respondent’s termination to the School Board. See § 1012.27(5), Fla. Stat., and School Board of Polk County Bylaws and Policies (“School Board Policies”) section 3140. The Termination Letter set forth the basis for Superintendent Byrd’s recommendation as follows: In December 2016, the [School Board] . . . received allegations that you were having inappropriate contact with a student via text messages. In a subsequent letter, dated October 6, 2017, the School Board expounded that Respondent violated Florida Administrative Code rules that require a teacher “to make a reasonable effort to protect students from harmful conditions, to not intentionally expose a student to unnecessary embarrassment or disparagement, and to not exploit a relationship with a student for personal gain or advantage.” See Fla. Admin. Code R. 6A-10.081(2)(a)1., 5., and 8. At a meeting held on June 13, 2017, the School Board adopted Superintendent Byrd’s recommendation and suspended Respondent, without pay, pending the outcome of this evidentiary hearing. Respondent’s actions that gave rise to Superintendent Byrd’s recommendation of termination occurred in November and December 2016. The student involved in this matter, Z.B., was ten years old at the time. Respondent was Z.B.’s fourth-grade math teacher. Also at that time, Respondent’s son, S.H., was nine years old. At the final hearing, Respondent explained that her son had difficulty making friends. During that fall, Respondent had observed Z.B. in her class. She believed that he would make a good playmate for her son. In October 2016, Respondent wrote a letter to Z.B.’s mother, Alita P., inquiring whether Respondent could get Z.B. and S.H. together to play. Ms. P. welcomed the invitation and supported the prospective friendship. Over the next few weeks, Respondent invited Z.B. on multiple playdates with her son. On one occasion, Respondent took Z.B. to the movies with S.H. Z.B. also joined Respondent and S.H. on a day trip to Legoland for which Respondent paid. Twice, Z.B. spent a weekend at Respondent’s house. During the sleepovers, Z.B. slept with S.H. in his bedroom. Respondent also gave Z.B. a college team sweatshirt, as well as purchased a skateboard and helmet for Z.B. so that he could join in with S.H. at a skate park. Ms. P. and Respondent also became friends during this period. They communicated frequently. Respondent requested all playdates through Ms. P. Respondent regularly texted Ms. P. while Z.B. was in her care. Respondent professed that she never made any plans for Z.B. without notifying Ms. P. Around this time, Z.B. experienced a contentious confrontation with another student. Respondent commented to Ms. P. that Z.B. was distressed and exhibiting disruptive behavior. To help the situation, Respondent offered to bring Z.B. lunch at school. She also allowed him to eat breakfast in her classroom. A few days after the incident, Ms. P. relayed to Respondent that Z.B. expressed that he was excited to return to school. Ms. P. thanked Respondent for helping Z.B. through his difficulties. On November 28, 2016, Respondent gave Z.B. a cellphone. Respondent explained that she had an extra, unused phone left over from a phone plan upgrade. Before Respondent provided the phone to Z.B., however, she expressly asked Ms. P. for permission. Not only did Ms. P. approve, but she was excited at how enthusiastically Z.B. accepted the gift. Respondent arranged for Z.B.’s cellphone to reconnect to her family phone plan so that he could text her and S.H.’s cellphones. Respondent also purchased several games (apps) for Z.B. to download onto the cellphone. One of these apps was a music program that allowed him to post videos of himself singing. Respondent had access to watch Z.B.’s videos. Respondent’s relationship with Z.B. (and Ms. P.) came to an abrupt halt on the evening of December 3, 2016. That night, Z.B. was staying with his father. (Ms. P. is divorced from Z.B.’s father.) Ms. P. called Z.B. just after 11:00 p.m. She asked what he was doing. Z.B. responded that he was texting Respondent. Because of the late hour, Ms. P. immediately became concerned. She instructed Z.B. to show the cellphone to his father. After taking the phone and scrolling through the text messages, Z.B.’s father became even more alarmed. A sample of the text messages Respondent sent to Z.B. from November 29 through December 3, 2016, includes: Just wanted to tell you goodnight. . . . See you in the morning. Love you like you are mine. [Z.B. responded with “Love you too.”] You really are the sweetest boy. . . . You’re a good person but you put on a show for people at school. I want you to be successful. You are very special to me. . . . There’s just something about you and your personality that I have grown very fond of. You know I love these late night talks we have. Love you too, yes I forgive you [for putting the phone away for the night], but you better prove it next week. Love you bunches that should make you smile. How much do you love me? Do I get more love? Gimme some love or I’m going to keep pestering you! Where’s my love? Gimme love or I’m taking [a gaming app] back. You can never have too much [heart symbol]. Call me later if you want . . . just call when you want. Those are some smokin hot videos you posted! [Respondent texted after viewing several videos Z.B. created using a music app.] You being a little hottie. Like a gangsta video. You breaking up with me???? In a number of other texts, Respondent wrote “love you” to Z.B. In an equal number of texts, Z.B. wrote to Respondent that he loved her. (In texts with Ms. P., Respondent wrote that she loved her as well.) Other text messages between Respondent and Z.B. included heart symbols and “face throwing a kiss” and “smiling face with heart-eyes” emojis. The cellphone had also been used to “FaceTime” Z.B. several times. Ms. P. believed that the language Respondent used and the sizable number of text messages she sent to her son were highly inappropriate. Therefore, just after Z.B.’s father confiscated the cellphone from Z.B., Ms. P. immediately texted Respondent and told her that she (and Z.B.’s father) had decided to return the phone. Ms. P. thanked Respondent for her “kindness and generosity.” But, she did not believe that Z.B. was “ready for that right now!” However, as Ms. P. and Respondent texted throughout the night of December 3, 2016, Ms. P. grew increasing disturbed at the content and “AMOUNT” of the text messages Respondent sent to her son. She finally informed Respondent that she felt it was best to return the phone and “squash it.” Shortly thereafter, despite Respondent’s repeated apologies at having caused any problems, Ms. P. wrote: The friendship is over! There are a few inappropriate texts on there that an adult doesn’t have with a 10yr old child not [sic] alone a student. I trusted you! On Monday morning, December 5, 2016, Ms. P. contacted Lake Shipp Elementary School to complain about Respondent’s interaction with Z.B. Ms. P. divulged that she believed that Respondent was carrying on an inappropriate relationship with her son. Immediately after this incident, Ms. P. was allowed to transfer Z.B. to a new school. Ms. P. testified that her son had become increasingly uncomfortable at Lake Shipp Elementary School. She disclosed that his behavior changed both at school and at home during the time he was the subject of Respondent’s attention. Currently, Z.B. is doing much better at his new school. Ms. P. relayed that Z.B. has not exhibited any of the behavioral issues that arose during that fall and is making straight A’s. At the final hearing, Respondent acknowledged sending the text messages to Z.B. Respondent also imparted that, as his teacher, she had grown fond of him. However, she adamantly declared that she had no improper intentions or motives other than to help Z.B. She was only trying to build his self-esteem. Respondent explained that she develops an attachment to the children she teaches. She has always made an effort to help students who have fallen between the cracks. When she finds a child who struggles, she wants to make them successful. Respondent pointed out that she did help Z.B. with math during their relationship. Respondent further testified that she used the word “love” to mean that she loved Z.B. like her own child. Respondent asserted that she cared for Z.B. just as any mother would have. Respondent also remarked that she bought Z.B. the skateboard and helmet only so that he could play with S.H. She denied that she ever FaceTimed Z.B. over the cellphone. Only S.H. and Z.B. used FaceTime. Respondent insisted that she never had anything but the best intentions for Z.B. Respondent asserted that anyone who perceived an improper or intimate relationship between them was jumping to the wrong conclusions and making incorrect assumptions. No evidence was produced at the final hearing indicating any inappropriate physical or sexual contact between Respondent and Z.B. Respondent called Joseph Palmer to testify on her behalf. Respondent taught Mr. Palmer’s son, D.P., in first and second grade. D.P. is currently in high school. Mr. Palmer expressed that Respondent was extremely helpful with his son in elementary school. Respondent was D.P.’s math teacher in first grade. She continued to help him with his math, reading, and speech skills throughout elementary school. Mr. Palmer relayed that, similar to Z.B., Respondent invited his son on a trip with her family to Legoland. Prior to the trip, D.P. spent the night at Respondent’s home. Mr. Palmer maintained that he was never concerned with, nor did he ever observe, Respondent act in an inappropriate manner with his son. Mr. Palmer proclaimed that he considers Respondent “like family.” Based on the evidence and testimony presented during the final hearing, the School Board proved, by a preponderance of the evidence, that Respondent committed “misconduct in office” in violation of Florida Administrative Code Rule 6A-5.056. Accordingly, “just cause” exists, pursuant to section 1012.33, for the School Board to dismiss Respondent during the term of her teacher’s contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order upholding its decision to dismiss Respondent, Kimberly Horbett, from her employment contract. DONE AND ENTERED this 2nd day of May, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2018.
The Issue Whether Petitioner has cause to terminate Respondent's employment as a school monitor as alleged in the Notice of Specific Charges filed January 25, 1995.
Findings Of Fact At the times pertinent to this proceeding, Respondent was employed by the Petitioner as a security monitor at Hialeah-Miami Lakes Senior High School, one of the public schools in Dade County, Florida. The job duties as a school security monitor require him to patrol the school propery to detect and prevent illegal activity on school premises, to prevent unauthorized persons from coming on campus, and to report to the school administrators any problem or potential problem observed on school grounds. Prior to the incident that resulted in this termination prooceeding, Respondent had been reprimanded for sexually harrassing three female students. Respondent had attended conferences at which he was informed as to how he was expected to conduct himself on the job and how he was to interact with members of the public, students, teachers, and administrators. Following his reprimand, Respondent was individually counseled as to his expected behavior. The incident that resulted in this termination proceeding occurred May 5, 1994, on the school campus while the Respondent was on duty. Also on duty was Jannine Garribian, a substitute teacher that Respondent had been dating. Immediately before the incident described below, Respondent became involved in a loud argument with another male security monitor over whether this other man had had intimate relations with Ms. Garribian. Following this argument with the other security monitor, Respondent went to the drama room where Ms. Garribian was carrying out her assigned duties. In the presence of students, Respondent physically grabbed Ms. Garribian, shook her, and made loud accusations about her and the other security monitor. He attempted to drag her from the room so he could talk to her. She struggled with him. He grabbed her neck and pushed her against the wall. They then left the room for a short period of time. When they returned, Respondent told a student that Ms. Garribian was a slut and a whore. He called her a devil and said that she was a cold, evil person. When Respondent left he took Ms. Garribian's car keys with him. Ms. Garribian and the students who witnessed this incident were very upset. Carroll Williams, an assistant principal at the school, retrieved Ms. Garribian's car keys from Respondent. Respondent was thereafter ressigned to the regional office pending an investigation. Thereafter, upon recommendation of the school principal, the School Board suspended Respondent's employment without pay and intiated these termination proceedings. Respondent testified at the formal hearing that he did not want to be reinstated to his job with the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that terminates Respondent's employment as a school security monitor. DONE AND ENTERED this 16th day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1995. COPIES FURNISHED: Gerald A. Williams, Esquire Mack, Williams, Haygood & McLean, P.A. 1450 Northeast Second Avenue Suite 562 Miami, Florida 33132 Mr. Carlos Izquierdo 560 West 79th Street Hialeah, Florida 33014 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Respondent began working for Petitioner School Board in 1960 as a teacher and has been so employed for approximately twenty years, with several breaks in service. At all times material hereto, Respondent has held Florida Teacher's Certificate No. 112370, Rank 1, covering the areas of elementary education, social studies, and junior college. During the 1981-82 and 1982-83 school years, Respondent worked as a social studies teacher at Cutler Ridge Junior High School. Prior to the 1981-82 school year, Respondent served as a CSI instructor for several years. CSI is the Center for Special Instruction and is an indoor suspension system. Students who have had difficulty in school, such as skipping classes and defiance of authority, are sent to the CSI room where they are isolated from their classmates to work on their regular school assignments. When Dr. John Moore became principal of Cutler Ridge Junior High School for the 1981-82 school year, he became aware that the CSI program needed to be strengthened. Parents, community leaders, and staff members of the school felt that the CSI program was not supportive of the disciplinary structure of the school, and teachers had been complaining about CSI. When Respondent was informally observed in the CSI room, the students "seemed to be having an extremely good time there . . . [,and] were running their own show, . . . [so] they liked going to CSI." The students were out of their seats, moving around at will, and some were walking in and out of the classroom. The room was noisy and in one instance in November 1979 the students were throwing a football around the room. When Dr. Moore reviewed the schedule for 1981-82, he saw that Respondent had a split schedule of part-time in CSI and part-time in social studies. He changed Respondent to a full-time social studies schedule, initially with four seventh-grade classes and one eighth-grade class. As a result of the suggestion of Respondent and another teacher, Dr. Moore merged the two teachers' schedules so that Dr. Sullivan ended up with a straight seventh- grade schedule. This would have reduced the amount of lesson planning required by Respondent and would have made his work load easier. Seventh-grade social studies is the simplest assignment Dr. Moore could have given a social studies teacher. During the 1981-82 and 1982-83 school years, a pattern could be discerned in Respondent's teaching. During each of those years, there was a relatively positive start with erratic performance during the first semester. By second semester, there was substantial disaster and a total lack of a learning environment. This erosion pattern was attributed to Respondent's teaching techniques. During the first semester of each year, Respondent had the students working at the lowest level of cognitive ability, i.e., memory work. Students became bored with that after a period of time. Respondent was not using feedback mechanisms to tell him what the students were understanding. Respondent did not teach in a logical sequence beginning with the first semester. These things led to frustration and boredom on the part of the students, and negative behavior became apparent. The negative behavior became resistive. This led to the erosion as above described. Respondent was formally observed by Assistant Principal James Marshall on November 16, 1982. Respondent was rated overall unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Respondent was unacceptable in preparation and planning because he had no lesson plans. He was rated unacceptable in classroom management because of the disorganization of his class. He was rated unacceptable in techniques of instruction because he did not adapt materials and methods to the needs and abilities of his students and failed to provide opportunities for the students to express their ideas. He failed to give specific directions to the students and only used one technique of instruction, i.e., the lecture method. Mr. Marshall prescribed help for Respondent. He recommended that Respondent formulate good lesson plans according to the scope and sequence of the curriculum. A portion of the lesson plan should contain a procedure for the evaluation of the students. He recommended that Respondent praise the students and that Respondent try to obtain enough textbooks. If he could not, he should utilize duplicated materials. Mr. Marshall pointed out how Respondent could change the seats of his disruptive children and call the parents to see whether he could get some backup from them. The next formal observation of Respondent was performed by Assistant Principal Albert Villar on January 8, 1982. Respondent was found overall unacceptable and was rated unacceptable in the categories of preparation and planning, classroom management, assessment techniques, teacher-student relationships, and professional responsibility. He was rated unacceptable in preparation and planning because the students were taking a test which was written on the chalkboard. The test was confusing to the students, and they were not certain as to what part of the test they were to take. Further, the test was not visible to the entire class. Respondent was rated unacceptable in classroom management because students walked in and out of the classroom, several students were talking during the test, and some were putting on makeup. Respondent was marked unacceptable in techniques of instruction because the students needed to answer questions with the textbook, and not all of the students had a textbook accessible to them. Respondent told the students to share, which is inappropriate because there would be a tendency to cheat on the examination. Respondent was marked unacceptable in assessment techniques because he did not have a written copy of the test; therefore, it would be impossible for students who are absent to make up the test. There also should have been a copy of the test in the students' folders. Respondent was marked unacceptable in teacher-student relationships because the lack of textbooks led to a relationship which did not reflect equal recognition and respect for every individual. Mr. Villar made recommendations for improvement. He recommended that if Respondent wanted to use a chalkboard test, he should have a written copy in the students' folders, and he should enforce his classroom rules about students not talking during a test. Respondent's next formal observation was performed by the principal, Dr. John Moore, on January 27, 1982. Respondent was rated overall unacceptable and was found to be unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, teacher-student relationships, and professional responsibility. He was rated unacceptable in preparation and planning because the lesson he taught was not the lesson described on his lesson plan. The inadequate planning led to classroom management problems. Throughout the observation, the students were "off task, doing their own thing, talking to each other and so on." The students and Respondent were talking at the same time. Eight students were chewing gum, which is against school rules. Techniques of instruction were rated unacceptable because the students were no on task. Respondent was not getting the students involved in discussions or in expressing their ideas. He was not getting feedback from the students because the students were talking among themselves. With teacher-questioning techniques, Respondent could have gotten the students involved. He could have gotten them on task by giving them quizzes or handouts which could structure their learning. Instructions were given while the majority of the class was talking, and the students were not challenged. Respondent was rated unacceptable in teacher-student relationships because throughout the observations there were repeated examples of students' disrespect, students yelling out across the room, students talking back and refusing to follow instructions. There was no reaction by Respondent. The bulk of the students were not responding. Professional responsibility was marked unacceptable because at the beginning of the year, Respondent was directed to enforce his class rules and to establish an effective learning environment. This was a general disciplinary project for the whole school. Dr. Moore prescribed help for Respondent. He recommended that Respondent work with his department chairman to review grade level objectives and to be certain that his lesson plans reflected the Dade County Balanced Curriculum requirements. Dr. Moore also recommended that he meet with a fellow teacher to review how she prepared her lesson plans. Dr. Moore recommended that Respondent enforce his class rules and that instead of using an oral approach, Respondent should develop handouts for the students. This would give them some structure as to what they are going to do. He recommended having homework guidelines and using review quizzes. Respondent was next formally observed by Mr. Marshall on February 5, 1982. Respondent was rated unacceptable overall and was marked unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, and teacher-student relationships. Respondent was rated unacceptable in preparation and planning because while he had lesson plans, they were not done according to the sequence and pattern prescribed in the school. Respondent did not get the students to work right away at the beginning of the period and the students were not on task. Classroom management was rated unacceptable because Respondent had no control of the students. The students were doing what they wanted to do and were disrupting the class. Respondent was marked unacceptable in techniques of instruction because he did not adapt materials and methods to the interests, needs and abilities of his students. He was lecturing the students, and this technique did not allow the students to participate. Respondent was marked unacceptable in teacher-student relationships because the relationship was not a positive one: the students were not guided into a class discussion by Respondent; there was no relationship between Respondent and the students, and the students did not want to give information to the teacher. They just wanted to sit there. Mr. Marshall prescribed help for Respondent. He requested that Respondent make sure that each student participate in the learning activities. He recommended that Respondent duplicate the assignments so that there would be enough for all students to have and that Respondent guide the students in a discussion from his daily lesson plan. Respondent was next formally observed on February 16, 1982, by Phyllis Cohen, Area Line Director for the Dade County Public Schools. Respondent was rated overall unacceptable and was found unacceptable in the areas of preparation and planning, knowledge of the subject matter, classroom management, techniques of instruction, and teacher-student relationships. The instructions given to the class were not comprehensible. None of the things that were indicated in the lesson plan occurred. As a result, when the students were divided into three groups and told to read, without the appropriate directions, each group proceeded not to read. As the lesson progressed, the behavior deteriorated more and more until at the end of the lesson, three-quarters of the class was off task. There was an elaborate lesson plan, but it was not followed. Knowledge of the subject matter was rated unacceptable because the teacher did not demonstrate a knowledge of the content of the chapter while he was giving class directions. Respondent was marked unacceptable in classroom management because his class management practices needed much improvement. Respondent was marked unacceptable in techniques of instruction because he did not adapt materials and methods to the interests, needs and abilities of the students. Further, he did not use instructional strategies for teaching the subject matter. Respondent was rated unacceptable in assessment techniques because many of the students' papers were not graded, most of the work on file was work book papers consisting of mostly short answers and recall questions, and there were very few essays. Mrs. Cohen recommended help for Respondent. She directed him to develop lesson plans which are useful and which list key concepts, activities, questions and vocabulary. She directed him to work with the principal who would provide models for his use. She recommended that the department head arrange to have Respondent observe a master teacher presenting a civics lesson. She recommended that he observe teachers who exhibit good class control, that he become aware of what the students are doing, and that he review and enforce class standards for behavior. She recommended that he work with the assistant principal to improve class management techniques and that Respondent have a five-minute start-up activity on the board fro students to do when they enter the class in order to settle the class down, take attendance, and begin the lesson in a more orderly fashion. She also recommended that he improve his presentation strategies and teaching techniques by working with the social studies department head. The next formal observation was performed by Mr. Marshall on March 11, 1982. Respondent was rated overall unacceptable and was found to be unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. He was rated unacceptable in preparation and planning because his lesson plans were not adequate, unacceptable in classroom management because there was still a problem with student control and participation, and unacceptable in techniques of instruction since he still was not adapting materials and methods to the interests, needs and abilities of the students and was not providing opportunities for the students to express their ideas. Mr. Marshall prepared a memo in which he listed teaching techniques that would help improve Respondent's teaching. He recommended that Respondent praise the students more. Respondent was next formally observed by the social studies supervisor for the Dade County Public Schools, Paul Hanson, on March 19, 1982. Respondent was rated overall unacceptable and was found unacceptable in the categories of classroom management, techniques of instruction, assessment techniques, teacher- student relationships, and in one subcategory of preparation and planning because the plans which were written were not compatible with what actually took place in the classroom. Respondent was rated unacceptable in classroom management because there was no means of controlling the students who talked and moved about the classroom at will. The discipline was nonconducive to a learning environment since students were talking, out of their seats, and not on task. Very little learning was taking place. Techniques of instruction were marked unacceptable because the students were not motivated, and the instruction given them was not conducive to learning for junior high students. The activities in the classroom did not reflect the adoption of materials and methods to the interests, needs, and abilities of the students, and there was confusion in the class. Respondent was rated unacceptable in assessment techniques because the test which was observed did not equate with the instruction taking place, the test construction was very poor, and there were a number of grammatical errors on it. What was being tested was not compatible with what was being taught at the time, according to the lesson plan. The grades and records of the students' achievement were not up to date but rather were about two to three weeks behind. Therefore, the students' progress was not being monitored on a daily basis. Respondent was marked unacceptable in teacher-student relationships because of the behavior problem in the class. There seemed to be very little respect for the students on the part of the teacher, and it was difficult to determine who was in control of the class. Mr. Hanson recommended that the lesson plan be more specific and that it equate with what takes place in the classroom. He recommended that Respondent observe other teachers for their classroom management techniques and that a staff development course be taken. He also suggested that Respondent observe a master teacher for the techniques of instruction. Mr. Hanson provided some reading materials to Respondent dealing with such topics as how to conduct a classroom discussion, how to manage a social studies classroom, and how to use audiovisual films in a social studies classroom. The next formal observation of Respondent was done by Dr. Moore on April 13, 1982. Respondent was rated overall unacceptable and unacceptable in the categories of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, assessment techniques, teacher- student relationships, professional responsibility, and supportive characteristics. There was no improvement in this observation over the prior observations. Preparation and planning was unacceptable because the majority of students were off task during the observation, the written plan was not in compliance with the prior prescriptions and the lesson plan was not followed by Respondent. Knowledge of subject matter was marked unacceptable because Respondent failed to provide students with necessary explanations to implement the lesson plan. He confused the teaching objective with directions for student activity. Classroom management was marked unacceptable because the students were off task, were frequently moving, were constantly socializing, and a student was permitted to defy Respondent without consequences. Also, there were forty wads of paper on the floor. Techniques of instruction wee marked unacceptable because Respondent gave materials to the students prepared by the National Council of Social Studies for teacher use without modifying or adapting these materials for student use. He did not provide opportunities for students to express their ideas, although this was called for in his lesson plan, and he gave confusing directions to the students. The distribution of the National Council materials caused organization problems, and confusing directions used excessive class time. Respondent was marked unacceptable in assessment techniques because he did not make an assessment of each student's academic progress. He gave the students credit based upon untested assertions of mastery of assignments. He asked the students to "Tell me if you know this . . . I'll mark it down and you can go on. . . ." Teacher-student relationships was rated unacceptable because defiant students regularly disregarded his direction to stop talking. Respondent was marked unacceptable in professional responsibility because he had failed to comply with directives regarding remediation practices. He was found unacceptable in supportive characteristics because it was found that he did not contribute to the total school program. Dr. Moore recommended that Respondent review prior directives on lesson planning and comply with those. He further recommended that Respondent review material with his department head and that Respondent implement the posted consequences for student behavior. Dr. Moore submitted a memorandum to Respondent outlining the problems that he saw in this observation and compiled a list of pertinent materials available in the media center. On April 16, 1982, Dr. Moore made Respondent aware of a parent complaint concerning the basis for a student's grade and the failure to notify the parent of the lack of student progress. As a result of that parent complaint, Dr. Moore reviewed Respondent's grade book and found a variety of deficiencies: There were grades that were not identified; there was no indication of makeup work, and the mechanics of keeping grades were absent. The grade book is a document which is required by law and by School Board rule. It is an attendance record and a primary record of the student's progress as compared to the course standards. Dr. Moore provided a memorandum to Respondent indicating what improvement was needed. Around the same time, Respondent became ill and was hospitalized. A series of memoranda were sent from the school to the Sullivans and vice versa. It was difficult to ascertain the nature of Respondent's illness and the expected length of his absence. Eventually it was determined that Respondent's illness was genuine, and he was given an opportunity to return to his school to complete his prescriptions. Respondent was next formally observed by Althea King, Assistant Principal, on October 18, 1982. This was the first formal evaluation under the TADS system. There is no overall rating on the individual TADS observation forms. This observation showed a great improvement over the prior observations. Prior to this observation, Mrs. King met with Respondent to go over the things she would be looking for and made an appointment with Respondent for her observation. Although Respondent sincerely desired to improve, he was found unacceptable in preparation and planning because his plan did not fill the allotted time. Mrs. King observed Respondent for one hour and found that there were 20 to 25 minutes remaining in the class period when the students had finished an activity and were not provided another activity. Mrs. King noted that preparation and planning is very significant because it is the means of gaining control of the classroom. She recommended that Respondent read certain sections of the teacher handbook and complete activities therein to help him develop a lesson plan that would have the various essential parts. The next formal observation was done by Dr. Moore on November 8, 1982. He found that Respondent's classroom management was above a minimally acceptable level. The class was noisy, but it was under control. There was, however, substantial deterioration in the other categories. Dr. Moore directed Respondent to give priority attention to the other five areas since progress had been made in classroom management. He further directed Respondent to outline the sequence of key concepts and generalizations for each unit and to discuss them with the department head to insure consistent comprehension. He directed Respondent to use inquiry strategies and to review a section in the faculty handbook to implement activities listed therein. He directed Respondent to list specific student objectives in behavioral terms in his lesson plans. The next formal observation was done by Dr. Moore on December 15, 1982. The observation, which was scheduled in advance, was relatively good. There was improvement in a number of areas over the preceding observation although Respondent was still not dealing with students who were off task, a fault which eventually leads to deterioration. Respondent was weak in using feedback mechanism. This is a shortcoming in teacher-student communication, indicating whether or not the teacher knows what the students are really perceiving and learning. In order to help Respondent, Dr. Moore recommended that Respondent read sections in the TADS prescription manual and attend Teacher Education Center workshops on teacher-student relationships and on assessment techniques. Shortly after the Christmas break, there was apparent deterioration of behavior in the classroom. There were reports from other teachers of loud, disruptive behavior. Respondent was directed to confer with Assistant Principal Daniel McPhaul and to make sure the students know that there will be consequences if they do not behave. Starting at this point, there was the same pattern of disruption that had been seen in the prior school year. Respondent was making no visible effort to restore order in his classroom. The next formal observation of Respondent was done by Dr. Moore and Mr. Hanson jointly on February 8, 1983. Respondent was not found acceptable in any category. The class lesson consisted of giving workbooks to the students. There was no teaching, simply a passing out of materials. This failed to keep the students on task. There were consistent violations of the class rules and no consequences. Media still was not being used, and there were wads of paper on the wall. Respondent was marked unacceptable in preparation and planning because his lesson plan did not fill the allocated time. What was planned covered only 30 minutes of a 55-minute period. What was going on in the classroom did not follow the lesson plan, and what was being done was not included either in that lesson or the lesson plan for the next day. While Respondent exhibited knowledge of the subject matter, he was not found acceptable in the area of presentation of the subject matter. He used a "scattergun" approach. With the remaining 30 minutes, he filled in the time with something completely irrelevant to the plan for the day and irrelevant to the general overall plan for the week. The information presented to the children was simply handed to them with no logic or reason why they were getting this information. The information presented was not timely. Only one cognitive level was utilized in the entire classroom period, the lowest level-recall or remembering. No higher or challenging cognitive levels were presented, and the lesson was presented in an uninteresting manner. Classroom management was unacceptable because approximately two-thirds of the students were not on task, and the behavior was inappropriate for a classroom. This resulted in no learning taking place, and Respondent did not seem to make any attempt to correct the situation. Respondent was marked unacceptable in techniques of instruction because he gave a skills lesson which needed some demonstration. However, he simply gave the students materials and told them to do the work. He should have taken the time to give instructions and actually demonstrate what the students were to do. The activities that took place did not give the students an opportunity for participation and verbal interaction with Respondent. The students were not invited to raise questions and were not actively involved in the lesson. It was basically a teacher-directed lesson. The lesson that Respondent presented would have been an opportune one for using media, but Respondent chose not to do so. There was a great deal of confusion on the part of the learners -- they did not know what to do with the materials, and very little clarification took place. Respondent was marked unacceptable in assessment techniques because he did not give the students more than a book-type exercise, which was not challenging, and only required students to recall basic information. This technique did not require them to actually think or apply the knowledge they learned. In the student folders, there was only one kind of evaluation, a dittoed workbook-type of page with mostly fill-in-the-blank type activities. Respondent was marked unacceptable in teacher-student relationships because there was not any mutual respect on the part of the students or teacher. Mr. Hanson found no improvement over his prior observation of March 19, 1982. Mr. Hanson prescribed help for Respondent, and Dr. Moore concurred with those prescriptions. It was recommended that Dr. Sullivan observe a master teacher at a school close to his and that Dr. Moore, a former social studies teacher, help in demonstrating some of the techniques needed in a social studies room. Mr. Hanson provided additional reading materials for Respondent. The next formal observation of Respondent was done by Mrs. King and Mrs. Cohen on March 29, 1983. Mrs. Cohen found Respondent unacceptable in all categories, and Mrs. King found him unacceptable in all categories except teacher-student relationships. Mrs. King found that his lesson plan was much decreased in quality over her prior observation: the objectives did not reflect good planning, the activities did not fill the allotted time, and the plan was not followed. Because of these, she rated Respondent unacceptable in preparation and planning. Knowledge of the subject matter was rated unacceptable because the subject presentation was unacceptable. Information and activities were not timely and accurate, and the sequence of presentation was not logical. Interesting, unusual or important dimensions were not included, and different cognitive levels were not presented. Respondent was rated unacceptable in classroom management because many students were not on task, and behavior management was not done appropriately. Techniques of instruction was marked unacceptable because the materials that were used were inadequate for the lesson. Student participation was very minimal, and there was little, if any, discussion. Students were asked to work on information in their folders. Individual questions were asked and answered but there was no other kind of instruction taking place during the observation. Assessment techniques was marked unacceptable for there was no indication that assessment had taken place or would take place for this particular lesson. The students seemed vague as to what they were supposed to be doing. Teacher-student relationships was unacceptable because there was no attempt to involve all students in the instruction. Basically, there was no instruction. Mrs. Cohen found the same conditions that existed on her previous observation of February 16, 1982. While the method of teaching had changed, as worksheets were distributed and folders were given out, there was still no teaching occurring, there was lots of confusion, and there was little attempt to draw relationships. These things contributed to a lack of control and off task behavior. Mrs. King discussed with Respondent activities that he might use to direct the students, to establish and gain control of their behavior in the class. She recommended written assignments, discussions, and lectures, using a variety of activities that might help give direction to him and to the students in the classroom. The next formal observation was performed by Daniel McPhaul, Assistant Principal, on May 5, 1983. Mr. McPhaul found Respondent unacceptable in all categories except knowledge of subject matter. Preparation and planning was unacceptable because there were some items lacking from the lesson plans, and the lesson plan did not have objectives. Classroom management was unacceptable because there were many students who were not on task strewn about the classroom floor, the desks were out of order, and students were walking around communicating with each other while Respondent was giving instructions. Techniques of instruction was unacceptable because there was no student participation. His instructional strategies were limited. There was no use of media from the library, although some was available to him. Assessment techniques were unacceptable because the lesson ended with the ringing of the bell. There was no time allowed for assessment. He did not ask questions to see if the students understood the lesson and did not evaluate the students. Respondent was found unacceptable in teacher-student relationships because if the students were interested in receiving instructions from Respondent, they would not have been playing around and communicating with each other. Mr. McPhaul suggested that Respondent get the students on task as soon as possible. One way to do this is to have handouts or pop quizzes ready at the beginning of the class. He also suggested that Respondent communicate with parents. He suggested that the students be made to clean the classroom before leaving. On May 25, 1983, Dr. Moore dropped in to visit Respondent because of a teacher's complaint. When he got there, there were several students running out of the door. Respondent indicate that no lesson was in progress, and the students were running around because there was nothing to do. The next formal observation was performed by Dr. Moore on June 1, 1983. There was no improvement: the class was noisy and off task; the lesson did not match the lesson plan; the lesson was not attended to by most of the students; many students talked while Respondent gave instructions; and nineteen out of twenty students did not follow directions. Further, since Respondent was using an inappropriate teaching technique for a fact recall level lesson, five students did nothing, fourteen students wrote statements totally unrelated to the unit they were studying, and only one student wrote one question pertinent to the unit under study. Seven weeks into the nine-week grading period, there were no grades recorded in the grade book. Based on this there would be no way to know what a student had done or how well. There were no codes in the front of the grade book to interpret the grades. There was no basis to explain a child's grade to a parent. Dr. Moore gave Respondent copies of his summatives on or about November 12, 1982, December 17, 1982, February 10, 1983, April 11, 1983, and May 1, 1983. A summative combines the preceding two classroom observations and rates a teacher overall acceptable or unacceptable at any point in the process. All of Respondent's summatives were rated overall unacceptable. Respondent was offered help at other times as well. The assistant principal had conferences with parents of disruptive students. Mrs. Parker taught directly across the hall from Respondent and observed that at times students were completely out of control, with desks and books being thrown across the room. Respondent asked her for help, and she suggested methods of control. There was so much noise coming from Respondent's room that Mrs. Parker would put her stool in the doorway and sit there and control both her class and Respondent's class at the same time. Mrs. Griswold, Respondent's department head, taught across the hall from Respondent. At times she noted the chaos. Quite frequently the students would be talkative and on occasions they would be walking around. The noise interfered with her class to the point that she would have to close her door. She offered to help Respondent by meeting with him on several occasions to discuss lesson plans, methods of controlling students, and using different techniques. She gave him materials to help him. During the 1981-82 school year, she met frequently, on a weekly basis, to go over Respondent's lesson plans. During some time periods, Respondent's lesson plans were more than adequate; at other times, they were not adequate. During the 1981-82, Respondent was told by Dr. Moore to submit lesson plans to Mrs. Griswold. He did not always comply. When he did , Mrs. Griswold went over his lesson plans with him, checking to make sure that the materials that he was using were applicable to the students in his class. She checked to be sure he was following the course outline for social studies for seventh graders. She tried to aid him in any way she could to try to maintain discipline and control in his class. On January 28, 1982, Assistant Principal Marshall gave Respondent a memorandum which dealt with tips for teaching. Mr. Marshall then monitored Respondent with informal observations two to three times a week to see whether Respondent was utilizing the suggestions made to him. The assistant principals had to enter Respondent's room at numerous times to gain control of or restore order to the classroom. Fellow teacher Beverly Dunbar also went into Respondent's room to restore control to his class. She observed that the children were so noisy that her own students could not do their work. When she went into Respondent's room, almost all of the students in the room were out of their seats, throwing papers, books, and throwing over desks. Respondent was standing there, not saying anything to them. They were out of control. On February 5, 1982, Respondent's room was changed to the first floor so that he could be closer to the administrative offices and to relieve the classes which had been around Respondent's classroom. The assistant principals were directed to assist Respondent whenever needed to restore order to his class when it was out of control. The assistant principals removed youngsters from Respondent's classroom and offered to take others out. Mr. Villar had a conference with Respondent to set up classroom rules for him and offered suggestions on the use of a seating chart to take attendance quickly and to become familiar with where students were sitting and to notice patterns in behavior that may become disruptive. Mr. Villar tried several times to talk to Respondent about his problems, but Respondent was not responsive. Mr. Villar also suggested that Respondent observe teachers in their school and in other schools in the same academic areas. He also recommended that Mrs. Griswold assist Respondent on lesson plans, ordering materials, and making sure he had a complete set of classroom textbooks. Mrs. King had conferences with Respondent. She called these her "lay-it-on-the-line" conversations. These dealt with how to get control of the students and force them through classroom activities through discipline measures, to do what they are supposed to be doing. She gave very specific recommendations such as moving certain students and specific kinds of activities that would keep the students involved. One day she went into Respondent's class and began the class for him to show how it could be done and how students could be controlled through various methods. Dr. Moore invited Mr. Hanson, the social studies supervisor, to observe Respondent's class and make recommendations to help the situation. At one point, when the principal observed Respondent's class, the room was so noisy and the students were so off task that he suggested that Respondent work with the students regarding the necessity of self control and following directions. He further recommended that Respondent work with Assistant Principal Villar to arrange for any kind of backup he would need. Dr. Moore also gave education articles to Respondent to read. The principal followed through and arranged for observations of other teachers by Respondent. Respondent was given an opportunity to raise any questions that he had about the type of support he needed. He was given an opportunity to give the administration feedback of the things they were not doing that he would like them to do for him. Dr. Moore compiled a composite record of all the prescriptions that had been given to Respondent in order that Respondent could review them and did a demonstration lesson for Respondent as an example showing the use of techniques which were explained in the readings that were given to Respondent. In spite of all the help that was given, Respondent's class continued to interfere with other teachers' classes. Mr. May testified that the noise was so loud that his students could not hear him dictating a spelling test during a semester examination. Mr. May saw things thrown through the room, such as books, and saw students out of their chairs and totally out of control. He heard glass breaking and saw glass on the ledges of the second floor. He was also afraid that some child would go out a second floor window and recommended to Dr. Moore that Respondent's class be changed to the ground floor. There was no improvement in the control of Respondent's class after he was moved to the first floor. On the occasion that Mrs. Dunbar went up to gain control of Respondent's class, her students were prevented from doing their work by the noise coming from Respondent's room. Other teachers in Mrs. Dunbar's department complained to her, and teachers complained to the assistant principals about the noise in Respondent's room. During informal observations, Respondent fared no better than he did no his formal observations. His class was generally disorganized with 100% of the time being spent without teachings. When Mrs. Dunbar observed Respondent, he was not teaching. There was commotion going on. At times, clapping and chanting could be heard coming from Respondent's room across the courtyard. The administrators received more student and parent complaints about Respondent's class than they did about other teacher's classes. When Mrs. King walked by the halls, she would come in to help establish order in Respondent's class. Sometimes she would be sent for by Respondent or by a student or other teachers. Very often she notices that there was chaos in the classroom with students moving around without inhibition. They were talking, tossing paper, and off task. They were not involved in any kind of constructive classroom activity, and the noise level was very high. On Mrs. Cohen's informal visits to the school, she observed Dr. Moore going into Respondent's room to quiet it because someone had thrown paper outside the room. It was the consensus of opinion of the experts who observed Respondent in the classroom that there was a repeated failure on his part to communicate with and relate to the children in his classroom to such an extent that they were deprived of a minimal educational experience. Respondent has not maintained direction and discipline of students as assigned by the principal and has not kept good order in the classroom. He has not taken precautions to protect the life, health and safety of every student. On one occasion Mr. Marshall had to respond to the Respondent's classroom because of the presence of a railroad spike in the possession of one of the students. Because of the gravity of the situation, the parents of the student were contacted and additional documentation was forwarded to Dr. Moore. During the 1982-83 school year, Assistant Principal King walked by the Respondent's class and observed a student holding a chair up in the air "as if in the intent of throwing it at another student." Another time she observed a student on all fours crawling along a back counter. On those occasions Respondent was standing in the front of the class, simply observing and doing nothing to (re)gain control of the class. During the 1982-83 school year, on several occasions jalousie windows were broken in Respondent's classroom by students playing and bumping into each other. Some students complained to Assistant Principal McPhaul about the noise level and disorder in Respondent's class and the difficulty they had in doing their work due to harassment by other students who wanted to play during class. Overall, during the last two years of Respondent's service, in the 1981-82 and 1982-83 school years, Respondent failed to achieve an acceptable performance rating as determined by eight formal evaluations during the 1981-82 school year, done by five different evaluators, two of which were external to the work site. In the 1982-83 school year, Respondent failed to achieve an acceptable performance rating as noted on nine different formal evaluations conducted by six different evaluators, two of which were external to the school site. The administrators asked Respondent whether there were any health conditions or medical conditions which should be considered in his case. Respondent stated that health was not a factor in his classroom observations. Neither Respondent nor his wife ever communicated to the administrators that there was a health problem that interfered with Respondent's teaching. After his suspension by the School Board, Respondent was examined psychologically and was found to have an inability to organize his social events into a meaningful order. His perceptual abilities are significantly below his age level, and his functioning is significantly below what one would expect given Respondent's level of education and teaching experience. He has extreme difficulty in differentiating relevant versus nonrelevant aspects in his environment. His thinking is highly concrete, and he is unable to coordinate data and integrate them into meaningful concepts. Respondent is verbose and uses circular reasoning to eventually reach a final conclusion. Respondent's examining psychologist determined that it would be difficult for Respondent to learn new techniques for getting a class into order, it would be difficult for him to learn new ways of doing lesson plans in order to structure his classroom activities, he would have a hard time working in a school organization where he had to perceive social situations and what is going on in a classroom, he would have a difficult time dealing with teachers, administrators, and students, and he would have a hard time perceiving the motives of the administration. His perceptions are vague and amorphous, and descriptive in nature. He has inordinate difficulties in capturing the essence of what was presented to him. While there is no evidence of thought disorder, his thinking is vague, disorganized, fuzzy, and reflective of an individual with possible organic factors interfering with his thinking and organizational abilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that a Final Order be entered in Case No. 83-2649 finding Respondent guilty of the allegations contained in the Specific Notice of Charges filed against him, affirming his suspension, dismissing him from his employment, and denying him any claim for back pay. It is further RECOMMENDED that a Final Order be entered in Case No. 83-3793 finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and permanently revoking Respondent's Florida Teacher's Certificate No. 112370. DONE AND ENTERED this 3rd day of January 1985 in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Craig Wilson, Esquire 315 Third Street West Palm Beach, Florida 33401 George F. Knox, Esquire Penthouse 200 Southeast First Street Miami, Florida 33129 Donald Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County School Board 1410 Northeast Second Avenue Miami, Florida 33132 Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (DADE COUNTY SCHOOL BOARD) ================================================================= SCHOOL BOARD OF DADE COUNTY, FLORIDA SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 83-2649 WILLIAM D. SULLIVAN, Respondent. /
The Issue This issue in this case is whether just cause exists for the proposed disciplinary action against the Respondent.
Findings Of Fact At all times material to this case, Dale Davis (Respondent) was employed by the Pinellas County School Board (Petitioner) under a professional services contract. The Respondent has received satisfactory performance evaluations until 1993 when she received an "improvement expected" evaluation in the area of judgement. During the 1994-95 school year, the Respondent received "improvement expected" evaluations in several areas. The Respondent attributes her performance difficulties to personal stress related to the illness of her parents, school violence, and teaching classes outside her field of expertise. On May 30, 1995, the Respondent, while teaching at Boca Ciega High School, received a written reprimand from Dr. Martha O'Howell, Administrator of the Pinellas County School Board Office of Professional Standards. The letter states as follows: I met with you, Barbara Paonessa, Principal, Allyn Ramker, Assistant Principal and Betty Shields, PCTA Representative on May 11, 1995....The purpose of the conference was to discuss several concerns regarding your failure to follow school and district procedures as well as specific directives given by your supervisor(s). I reviewed the following specific concerns which had been reported to the Office of Professional Standards by Ms. Paonessa: you have left students unattended and failed to supervise your students at all times; you have allowed students to come to your class at times other than when they are assigned to you; you have allowed and encouraged a "loose" classroom atmosphere, allowing students to eat and drink, play cards, talk to each other, and watch videos during instructional time; you have transported one or more students in your personal car; you have not followed the established curriculum; you failed to cooperate with the School Resource Officer in the performance of his duties. Ms. Paonessa and I both expressed grave concerns that your conduct has reflected a lack of sound professional judgement and exposes yourself and the district to possible liability. You acknowledged the validity of the aforementioned concerns but emphasized that philosophically you could not conform to the expectations described and defined by Ms. Paonessa and me. You stated "I'll do what I have to do by my conscience." I acknowledged that I believed you to be a strong student advocate with a great deal to offer. However, I emphasized that you must adhere to school and district policies and procedures and exist within the parameters defined by those policies and procedures. This letter of reprimand is for insubordination by your failure to follow the directives of the school administration. In addition, you failed to exercise sound professional judgement by your refusal to adhere to school and district policies and procedures. You are advised to supervise your students at all times, refrain from transporting students in your vehicle, follow the established curriculum for the subject areas you teach, and adhere to all policies of Boca Ciega High School and the school district. Failure to do so could result in further disciplinary action which may include suspension without pay or dismissal. The letter of May 30, 1995 contains a signature appearing to be that of the Respondent. The Respondent voluntarily transferred to Largo Middle School as an eighth grade language arts teacher for the 1995-96 school year. Prior to her transfer to Largo Middle School, the Respondent had taught only high school grades. On or about September 5, 1995, the Respondent found a letter signed "your neighbor" in a stack of mail. The letter from the "neighbor" was critical of the Respondent's supervision of her dog, and included vulgar language and threats related to the dog and the Respondent. On September 6, 1995, the Respondent took the letter to Largo Middle School. She discussed the letter with several students in her TAP ("homeroom") class prior to the beginning of scheduled academic classes, telling them that her dog was missing. Apparently, students were familiar with the Respondent's dog. Some students read the letter. On September 6, 1995, the Respondent gave her first period class three assignments which she noted on the chalkboard at the front of the school room. Assuming that the students would be familiar with her dog and would be interested in responding to the letter, one of the assignments was to respond to the letter from the "neighbor." Prior to beginning the assignment, the Respondent read portions of the letter to the students in her first period class. She did not read the vulgar language to the students, but provided verbal clues indicating she was omitting inappropriate language. After reading the letter, she instructed the students to write responses to the letter which could be shown to the "neighbor." A student asked whether they were permitted to use vulgar words in their responses. She advised them to express themselves as they saw fit in order to respond to the letter. At the end of the class period, the Respondent collected the assignments and reviewed the work. A number of the student letters contained vulgar and profane language. As was her usual practice, she read some of the work to the class, again substituting verbal clues for the inappropriate language. Apparently amused by the student work, she and the class laughed at some of the responses as she read them. During the second period class, the Respondent gave essentially the same assignment. She told the class to express their feelings about the letter, but said she would prefer that they not use vulgar language. At the end of the class period, the Respondent collected the assignments. A number of the student letters again contained vulgar and profane language. She read the same letters as had been read in the first period to her second period class, substituting verbal clues for the inappropriate language. Again, the Respondent and some of her students were amused by the responses. During the third period class, the Respondent gave essentially the same assignment. The third period class was composed of honors students. Again in response to a student inquiry, the Respondent told students to express their feelings, but directed the students to use asterisks or other symbols to substitute for inappropriate words in their responses. During the third period, a substitute teacher arrived in the Respondent's class. The substitute was to fill in for the Respondent, who had been advised by Principal William Harris to take personal time off in order to resolve a matter regarding her housing situation. Before the Respondent left the school on September 6, 1995, she advised the substitute teacher of the student assignments for the remainder of the day. The Respondent left the classroom with approximately ten minutes remaining in the third period. During the fifth and sixth period classes, the substitute teacher carried out the tasks assigned by the Respondent, including reading the letter to the students and having the students write responses. During the fourth period, another teacher at the school learned of the writing assignment from students who had been in the Respondent's earlier classes. Some students showed their responses to the teacher. The responses contained inappropriate language. According to the teacher, the students claimed the Respondent permitted them to use vulgarity in the responses. After the fourth period had concluded, the teacher notified Edward Cunningham, the school's assistant principal, of her concern regarding the situation. At some point during the day, two students approached Dr. Harris, the principal, and advised him of the writing assignment they had received from the Respondent. Dr. Harris went to the Respondent's classroom and spoke to the substitute teacher. The substitute teacher advised the principal of the Respondent's assignment. Dr. Harris collected the remaining student responses from the substitute teacher and left the room. When Dr. Harris returned to his office, he notified Dr. Martha O'Howell, Administrator of the Pinellas County School Board Office of Professional Standards. He was advised to discuss the matter with the Respondent upon her return. The Respondent returned to Largo Middle School on September 11, 1995, at which time she and Dr. Harris discussed the matter. In meeting with the principal, the Respondent acknowledged reading the "neighbor" letter to the class and assigning the students to respond. She acknowledged telling the students to express themselves as they believed appropriate. The principal requested and received the remaining student responses from the Respondent. During the meeting on September 11, Dr. Harris advised the Respondent that the assignment was inappropriate because it involved personal matters unrelated to her teaching responsibilities and because she had permitted the students to use inappropriate language in their responses. He directed the Respondent to refrain from discussing her personal life with the students. He directed the Respondent not to discuss the letter with the class and not to respond to any student inquiries made to her about the situation. He directed the Respondent to teach according to the approved curriculum. On September 13, 1995, Dr. Harris spoke with Dr. O'Howell and advised her as to the result of his discussion with the Respondent. He provided the student responses to Dr. O'Howell, who initiated an investigation into the incident. On September 21, 1995, Dr. O'Howell met with the Respondent and a representative of the Pinellas County Teachers Association (PCTA). The Respondent acknowledged bringing the letter to school, reading it to students, and assigning them to write responses. During the meeting, Dr. O'Howell advised that the assignment was inappropriate because it was outside the approved curriculum, because the content of the letter was personal, and because the Respondent had failed to direct the students to refrain from using vulgar language. Dr. O'Howell directed the Respondent not to discuss the situation surrounding the letter assignment or her personal issues with her students. On September 22, 1995, Dr. Harris entered the Respondent's second period class and observed students engaged in pillow-fighting, card playing and socializing. Dr. Harris discussed the student behaviors with the Respondent, who replied that it was a "free day" on Fridays. Dr. Harris explained to the Respondent that she was expected to teach the eighth grade curriculum every school day and that classroom management procedures were to be in effect at all times. He also told her that card playing was prohibited. Following the September 22 conversation between the Respondent and Dr. Harris, the Respondent told her classes that Fridays would no longer be "free days" but would be "enrichment days." The evidence establishes that the Respondent's Friday classroom activities remained essentially the same after the change in terminology. On September 25, 1995, Dr. O'Howell met with the Respondent and the PCTA representative. The purpose of the meeting was to execute a settlement stipulation related to the September 6, 1995 classroom reading of the "neighbor" letter and the related writing assignment. Disagreeing with certain statements in the settlement documents, the Respondent refused to execute the settlement documents. At that time, Dr. O'Howell again directed the Respondent to refrain from discussing the situation or her personal life with students. A proposed ten day suspension related to the September 6, 1995 classroom reading of the "neighbor" letter and the related writing assignment was forwarded to the School Board. During this period, copies of the student responses to the letter were released to news media representatives by the Petitioner and were the subject of articles in local newspapers. During a September 27, 1995 conference on an unrelated matter which was attended by Dr. Harris, Mr. Cunningham and the Respondent, the Respondent was again advised to discuss only curriculum matters with students and to refrain from discussion of personal issues. On October 9, 1995, the Respondent gave her students a journal assignment, directing them to write their feelings about the "neighbor" letter, the response writing assignment and subsequent events. At some point after being directed to refrain from discussing the situation with students and prior to October 11, 1995, the Respondent received a call at school from someone claiming to represent a national television talk show. The caller expressed interest in having the Respondent discuss the events surrounding the student responses to the letter on the talk show. The Respondent told her classes about the phone call and wrote the talk show representative's phone number on the chalkboard, explaining that she would not go on the show unless her students could accompany her. On October 11, 1995, the Respondent read an editorial to her students entitled "Teaching hate to eighth graders." The editorial, which had been published in the St. Petersburg Times, criticized the Respondent's behavior regarding the classroom reading of the letter and the related writing assignment, the School Board's response to her assignment, and the writing ability of her students. After reading the editorial to the students, the Respondent instructed her students to write responses to the editorial. The Respondent did not tell the students how to respond to the editorial. She told them that they might want to show the responses to their parents and, with parental consent, send the responses to the newspaper. During the second period on October 11, 1995, Dr. Harris observed the Respondent in her classroom holding a newspaper article while her students were writing. Dr. Harris directed Mr. Cunningham to enter the Respondent's classroom and ascertain the situation. Mr. Cunningham observed the Respondent discussing and assigning students to write rebuttals to the newspaper editorial. Mr. Cunningham observed the Respondent telling students that they could not send their rebuttals to the newspaper without permission from their parents. Mr. Cunningham also observed some students playing cards and others listening to music while the Respondent read the editorial and gave the assignment. Mr. Cunningham reported his observations to Dr. Harris. Dr. Harris contacted Dr. O'Howell and advised of the Respondent's classroom assignment related to the editorial. Dr. O'Howell advised she would be coming to the school campus and directed Dr. Harris to retrieve the student responses to the editorial. Dr. Harris directed Mr. Cunningham to obtain the responses from the Respondent. Mr. Cunningham went to the Respondent's classroom and asked for the responses. The Respondent refused to turn the materials over to Mr. Cunningham. Mr. Cunningham advised Dr. Harris of the Respondent's refusal to provide the materials. Dr. Harris contacted the Respondent over the school intercom system and directed the Respondent to come to his office with the materials. The Respondent came to Dr. Harris' office, but refused to provide the materials. Dr. O'Howell arrived at the school while Dr. Harris and the Respondent were discussing the issue. Dr. O'Howell requested the materials from the Respondent and she again refused to provide them. The Respondent left the school campus before the end of the day and subsequently notified the Petitioner as to the location of the editorial responses. By letter of October 17, 1995, the Respondent was notified by the Superintendent of Pinellas County Schools that she was being suspended with pay. The letter also advised the Respondent that the Superintendent was recommending her dismissal from employment. The letter states: My recommendation is based on the fact that on September 6, 1995, you read a "hate letter" you had allegedly received from a neighbor to your classes and directed your students to write a response to the author of the letter as a writing assignment. The letter contained profanity and other inappropriate language and the student responses also contained a great deal of profanity and other inappropriate language. After being directed on September 21, and September 25, 1995, to refrain from discussing this matter with your students, you gave your classes a journal assignment related to your "hate letter". On October 11, 1995, you read an editorial from the St. Petersburg Times regarding your situation to your students and assigned them to write a letter of response. You refused to provide the students' letters when directed to do so by three different administrators on October 11, 1995. In addition, you received a district reprimand on May 30, 1995, for insubordination and refusal to adhere to school and district policies. Your actions are a violation of The Code of Ethics and The Principles of Professional Conduct of the Education Profession in Florida and School Board Policy 6Gx52-5.31(1)(u)(v), and constitute just cause for your dismissal pursuant to Section 231.36(6)(a), Florida Statutes. Newspaper articles related to the events described herein were published in the St. Petersburg Times and the Tampa Tribune. The evidence fails to establish that the Respondent referred to the letter from the alleged neighbor as a "hate letter" during her conversations with students. The evidence fails to establish that the Respondent actually intended to show the student letters to the "neighbor." There is no evidence that the Respondent knew the identity of the "neighbor."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Pinellas County enter a Final Order terminating the employment of Dale Davis. DONE and ENTERED this 30th day of May, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5534 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6-7. Rejected, subordinate. 11, 14. Rejected. The evidence fails to establish that the Respondent referred to the letter as a "hate letter" during these conversations or that students were told their responses would be shown to the "neighbor." Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5-6, 8. Rejected, subordinate. 9. Rejected, suggested reconsideration of the assignment is not supported by greater weight of the evidence. Rejected, as to the Respondent learning of the problems related to the letter "at some point in the next few weeks," not supported by greater weight of the evidence. Rejected, as to date of referenced conversation, not supported by greater weight of the evidence. Rejected as to alleged changes from "free days" to "enrichment days," not supported by greater weight of the evidence. Further, there is no credible evidence to support the assertion that either "free days" or "enrichment days" were part of any organized and approved curriculum. The greater weight of the evidence establishes that in such days, students were occupied in non-academic pursuits, including physical horseplay, card playing, etc. Rejected, subordinate. Rejected, immaterial. Rejected as to assertion that Respondent avoided discussing the matter "as much as was feasible," not supported by greater weight of the evidence. Rejected as to reason for assigning a journal writing assignment, irrelevant. Rejected as to reason for assigning an editorial response writing assignment, irrelevant. Rejected as to reason for refusal to provide student responses to officials, irrelevant. 24. Rejected, unnecessary. 25-26. Rejected, not supported by greater weight of credible and persuasive evidence. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County 301 Fourth Street Northwest Post Office Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649 Marguerite Longoria, Esquire Kelly & McKee, P.A. Post Office Box 75638 Tampa, Florida 33675
The Issue Whether just cause exists to terminate Respondent from his employment with the Sarasota County School Board.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Sarasota County, Florida. At all times pertinent to this case, Respondent was employed by the Sarasota Board as a teacher. Respondent is certified to teach biological sciences grade 6 through 12. Respondent is not certified to teach reproductive health or health opportunities through physical education classes. Respondent was reassigned to the Landings,6/ the School Board’s administrative offices during the course of the investigation. On May 1, 2014, Superintendent White executed a letter to Respondent which provided in part: It has been reported to me by Dr. Rachel Shelley, Principal of Booker High School, that you have been insubordinate by not maintaining a professional learning environment with your students. It is reported that progressive discipline has occurred; however, these interventions have not been successful. You have grieved the initial proposed termination set for March 19, 2014 and on April 29, 2014; you were notified that this grievance was denied. Accordingly, I will recommend to the School board that it terminate your employment effective May 21, 2014. The School Board will vote to accept or reject my recommendation at its May 20, 2014 meeting. The meeting will be held at 1980 Landings Boulevard, Sarasota, Florida at 3:00 p.m. Background: Respondent was hired to teach integrated science to ninth-grade students at Booker High School (Booker) beginning in the 2001-2002 school year. Respondent taught at Booker for three years under Principal Jan Gibbs. At the beginning of the 2004-2005 school year, Respondent became the dean of a newly created middle school called Student Leadership Academy (SLA). Respondent worked at SLA for a year and a half. In the spring of 2006, Respondent transferred to and taught honors biology at Riverview High School. Respondent returned to Booker for the 2006-2007 school year under Principal Jill Dorsett. During the 2008 spring break, Principal Dorsett was reassigned to the Landings, and Constance White-Davis became Booker’s principal. Principal White-Davis served Booker for several years. During the 2008-2009 school year, Assistant Principal (AP) Edwina Oliver served as a teacher evaluator of Respondent. In April 2009, AP Oliver discussed with Respondent certain guidelines and expectations for teaching at Booker. AP Oliver reduced her comments to a memorandum of instruction (memo) to Respondent. This memo was not considered as discipline, but rather a reminder to Respondent of the guidelines and expectations for Booker teachers. The reminders included: responsibilities of assigned students according to Smartweb;7/ effective use of instructional time;8/ and consistent enforcement of policies related to student’s expectations.9/ In March 2010, AP Oliver issued a verbal reprimand to Respondent regarding his involvement in a Facebook exchange with a female student. During the Weingarten hearing,10/ Respondent admitted that R.P. was a student in his classroom, and it probably wasn’t the best idea that he responded to a female student’s Facebook posting by providing his cell phone number. Respondent was evasive in answering questions at the hearing regarding this incident; yet, he asserted that neither he nor R.P. contacted one another after Respondent supplied his cell number. Principal Rachel Shelly’s Tenure: When Ms. Shelley began her tenure as Booker’s principal, she devoted her first year to listening, watching, and meeting with administrators, lead teachers, teachers, parents, and community members. Principal Shelley found Respondent to be jovial, social, highly intelligent (in that he knew his curriculum), and very popular among the students. At some point AP Oliver shared with Principal Shelley her concerns regarding Respondent and his teaching style. AP Oliver was concerned that Respondent showed a lot of videos in his classroom, that he allowed students to come and go at will, and that he lacked high expectations for his students. Principal Shelley maintains high expectations for all Booker students and teachers. In order for Booker students to achieve their highest potential, Principal Shelley needs highly effective teachers who will “set and consistently maintain high expectation[s].” Booker (as all public schools in Florida) is mandated to teach to the Florida Education Accomplished Practice (FEAP) standards. FEAP requires that teachers must know how to do certain things and be able to teach those things to students. In order to meet these high standards, Principal Shelley tries to hire highly effective teachers in order for her students to advance. In April 2013, Respondent was placed on administrative leave while the school district conducted an investigation into an alleged battery of a student. A female student came forward and alleged that while she was alone in a classroom/preparation room grading papers for Respondent, Respondent brushed by her and grabbed her butt. The student reported the incident to Principal Shelley, who immediately instituted the district protocol by removing Respondent from the classroom environment. Respondent was instructed to wait for further instructions from Principal Shelley. Principal Shelley notified law enforcement via the Booker school resource officer, and a criminal investigation was conducted. For the remainder of the 2012-13 school year, Respondent worked at the Landings. Upon completion of the district’s investigation, it was determined that Respondent had violated two school policies: allowing a student to grade other students’ papers; and allowing a student to be alone in a classroom/preparation room. Respondent was suspended from the classroom for five days without pay. He served the suspension between October 16 and October 22, 2013. In late September 2013, the criminal charges against Respondent were dropped, and he was allowed to return to the classroom with specific expectations regarding his classroom teaching and management style. One specific instruction given to Respondent was that he was not to allow unassigned students in his classroom. The evidence clearly demonstrated that Respondent allowed a male student, K.C., who was not assigned to Respondent, to enter Respondent’s classroom during Respondent’s lunch/planning period. K.C. remained in Respondent’s classroom approximately 10-15 minutes. Respondent did not ask K.C. for a hall pass. Principal Shelley gave Respondent a verbal warning regarding his misrepresentation of the facts surrounding K.C.’s classroom visit. In November 2013, Principal Shelley conducted a walk- through of Respondent’s classroom. While there, Principal Shelley noted that Respondent’s lesson plans were not completed or available for viewing, and that students were eating in the classroom. Respondent was advised of these issues. In December 2013, Principal Shelley conducted a Weingarten hearing regarding the number of labs that Respondent was conducting in his classes. Principal Shelley directed Respondent to implement hands-on labs as required by the physical science curriculum, as she found that Respondent was not conducting the requisite number of labs. In January 2014, during Respondent’s marine science class, Respondent showed human pictures of male and female genitalia infected with the human papillomavirus (HPV). Respondent thought it was a “teachable moment” for juniors and seniors in high school. He continued to state something to the effect that if the students weren’t going to abstain from sex, they should use “condom sense.” Respondent admitted it was “a huge lapse in judgment,” “it was not in any way related to marine science” and he was “deeply sorry if [he] offended any student or parent.” Respondent admitted that he engaged in a conversation with students regarding “BJ’s and Costco.”11/ One student, K.S. (also known as K.L.R.S.), credibly testified that Respondent engaged in a conversation with students acknowledging that he (Respondent) liked Hispanic girls. K.S. was also distressed when Respondent winked at her following a comment about Respondent liking curly-haired Hispanics. Additionally, Respondent admitted to making sexually charged statements about his wife and/or his preference for Latin women. Even if those statements were taken out of context, Respondent should not have engaged in these conversations with students. A female student was offended by Respondent’s actions and reported them to a teacher, who in turn encouraged the student to report them to Principal Shelley. Once Principal Shelley heard the allegations, she immediately implemented the district protocol and relieved Respondent of his teaching responsibilities. After the district conducted another investigation, Superintendent White issued the termination letter to Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner terminate Respondent's employment as a classroom teacher for Sarasota County School Board. DONE AND ENTERED this 22nd day of December, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2014.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact During all times relevant hereto, Petitioner served as head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes (2015),1/ against teachers holding Florida educator certificates. Respondent holds Florida Educator Certificate 725789, covering the areas of middle school integrated curriculum and physical education, which is valid through June 30, 2020. During all times relevant hereto, Respondent was employed as a physical education teacher at Lehigh Acres Middle School in the Lee County School District. Respondent has been a Florida educator for 24 years, all with the Lee County School District. The Administrative Complaint, as to the material allegations, contends that “[o]n or about February 18, 2016, Respondent engaged in a physical altercation with 13-year-old, female student, A.O., when A.O. refused to give Respondent A.O.’s cellphone [and that] Respondent held A.O. to the ground during the altercation.” The Video The altercation in question took place in the school gymnasium (gym). Activities in the gym are monitored by at least a single video surveillance camera. The images captured by the video camera are somewhat grainy, but it is possible to glean from the images the general nature of the interaction between Respondent and the student in question; there is, however, no audio associated with the surveillance video. Respondent is seen on the surveillance video walking around the gym while students (approximately 40) are positioned on the floor throughout the gym. The video shows student A.O. sitting on the gym floor with her back against the bleachers. It appears from the surveillance video that the nearest student to A.O. is approximately eight to ten feet away. The video also shows that Respondent appears to weigh at least twice as much as A.O. and stand at least four inches taller. It is undisputed that Respondent, while moving about the gym, observed A.O. using her cellphone. The video shows Respondent moving towards A.O. When she is approximately three feet from A.O., Respondent communicates in some way to A.O. that she needs to give Respondent her cellphone. The student, while continuing to sit on the floor, is then seen either placing or attempting to place the cellphone in the right- rear pocket of her pants. Respondent, without pausing, then positions herself over the student and attempts to remove the cellphone from either the student’s pocket or hand. The student then rolls onto her right side and positions herself so that her right rear pocket is pressed against the gym floor. At this time, the student is in a near fetal position. Respondent, while continuing to stand over the student, then tussles with the student for about 10 seconds while attempting to take the cellphone. The student then extricates herself from Respondent’s grasp, and while rising from the floor is then pushed in the back by Respondent, which then creates about an arms-length distance between Respondent and the student. The student, while standing, then turns towards Respondent and appears to swing at Respondent with her left hand. Respondent knocks away the student’s extended left arm and then pushes the student onto the lower bench portion of the bleachers. The student lands on her butt and then immediately rises and moves towards Respondent. Respondent and the student’s arms then become entangled. While their arms are entangled, Respondent pushes the student back several steps, forces the student into a seated position on the bleacher bench, and then pushes the student to the gym floor. Respondent then positions herself on top of the student and subdues her by pinning her to the gym floor with her right leg over the student’s left leg and her left leg across the student’s upper back and shoulder area. Respondent released the student after approximately 40 seconds. Before releasing A.O., the video shows that many of the students in class rushed to the area of the gym where the altercation occurred, formed a semi-circle around Respondent and A.O., and recorded the incident on their cellphones. A cellphone video capturing portions of the incident was admitted into evidence, and on this video, a student is heard suggesting to another student that the recording of the altercation should be posted to YouTube. Student A.O. A.O. was in the eighth grade when the incident with Respondent occurred. A.O. did not testify at the disputed fact hearing, but she did submit written statements to school officials following the altercation with Respondent.2/ On February 22, 2016, A.O. provided the following written statement: I was sitting down on my phone like some other kids were doing to, not knowing I wasn’t allowed to use it because it’s my first day in gym. So Ms. Parsons said give me the phone so I said no, I’m sorry Miss, and when I went to reach for my pocket to put it in and she reached down and pushed her elbow and arm up against my neck and chest so I was on the ground flat by that time and we ended up both getting up and trying to get the phone and she ended up pushing me and then somehow she ended up holding me down by holding my arms and sitting on top of me. After she had pushed me on the bleachers she had lightly hit my leg so I hit her in her head. On August 17, 2016, A.O. provided an additional written statement, which reads as follows: I would like to add, that when she was above me after she put her forearm on me I did not feel safe so I stood up. Also when she had pushed me on the bleachers and kept wrestling with me I had been kicking her so she could leave me alone. After I was escorted to ISS, then Mr. Restino’s office, I was brought to the clinic after he had seen the video and Ms. Garcia took pictures of all my red marks and some scratches, they weren’t deep though. Respondent’s Version of Events On February 18, 2016, the date of the altercation in question, Respondent prepared the following written statement: This afternoon as I was walking around the classroom monitoring the students, I was checking to make sure that the students were working on their projects. I saw that the young lady in question was on her phone. I asked her to give me her phone and I reached my hand out for the phone. She snatched it away and I continued to ask her for the phone. I took the phone and she said I wasn’t getting her phone and struggled with me. I got the phone and she stood up and punched me in my right ear. I pushed her back and she came at me again so I pushed her back again. She kicked me in the stomach. I grabbed one of her arms and her leg as she went to kick me again and I brought her down to the floor. I put my knee on her back as I held her arm and leg. I told her that I could not believe that she would do this over a phone [and] that I probably would have given it back to her at the end of the class period since it was near the end of the day. She said that she didn’t know that because she was new. I told her even if she was new that you don’t hit a grown-up or a teacher like that. I told her that I was going to let her up. She said okay. By that time coach McDowell came over and said th[at] coach Steidl had called for assistance. Deputy Matthews came in and I explained what happened. He talked with her for a few seconds. I asked him if I should give him the phone or give it back to her. He said to give it to her so I did and they left. Later, I noticed that I had some scratches and blood on my arm and I went to the clinic to get my arm treated. On June 30, 2016, Respondent sent an email to the human resources department for the School Board of Lee County. In this missive Respondent notes, in support of her belief that she did nothing wrong in this situation, that during the fracas with A.O. “students were cheering” for Respondent and that throughout the incident she was merely “responding to [A.O.’s] inappropriate and disrespectful behavior.” Respondent testified during the final hearing and her testimony was in material part consistent with her written statements. Cellphone Policy Ms. Neketa Watson was the principal of Lehigh Acres Middle School during the 2015-2016 school year. According to Ms. Watson, the Student Code of Conduct in effect at the time of the incident in question provides as follows: Students may possess cell phones and other personal electronic devices while on school grounds during regular school hours, however they must be turned off at all times unless utilized for an approved activity. Cell phone usage is allowed during non-instructional time or for an approved activity. Possession of all personal electronic devices, including cell phones, is done at the student’s own risk and the school assumes no responsibility, legal or otherwise, with regard to these items. During the 2015-2016 school year, Ms. Watson sent weekly emails to all school personnel reminding them about school policy and procedures. The weekly reminders would often include reference to the school’s cellphone policy, which provides that “if we see it, we hear it, we take the phone.” The cellphone policy reminders sent out by Ms. Watson also explained to school personnel that they should not use physical force when attempting to secure a cellphone from a student and that if a student refused to turn over a phone when requested, then personnel should “call for an administrative administrator who removes the student” and then processes the student for suspension. Ms. Watson explained that she did not include the reminder about the cellphone policy in each of her weekly emails to personnel, but she specifically recalled having done so the week of the incident in question. Ms. Watson testified that the reminder was sent on Sunday night (February 14, 2016). On February 18, 2016, Adrienne McDowell was employed by the School Board of Lee County as an educational paraprofessional for physical education and was assigned to Lehigh Acres Middle School. In explaining her understanding of the cellphone policy, Ms. McDowell testified as follows: A: What we were told via email a couple weeks prior to this event that Ms. Watson sent out, when a student has a cellphone out, if you see it or hear it, you need to ask for it. If they don’t place that phone in your hands willingly, then you call for a specialist to come and deal with that student. It is not our job to take a cellphone away from a student, we just call for a specialist. Q: By specialist, what do you mean? A: Security, administration, someone in the specialist team, guidance counselor, you know. There are different, -- like I said, a specialist is a security guard, administration or guidance counselor; anybody more equipped to handle the situation than we are. Respondent testified that she was unaware of Ms. Watson’s emails to personnel regarding the proper protocol for confiscating cellphones from non-compliant students. On June 17, 2016, Respondent, as part of the investigation conducted herein, sent an email to school board officials and stated therein that it was her belief that “[i]f I had not taken her phone, that the students would have disrespected and challenged me from that day forward.” In the same missive, Respondent, in an attempt to discredit one of the students who witnessed her altercation with A.O., noted that she disciplined the student witness “for his misbehavior by writing him a referral and having him escorted out of [her] classroom.” Given Respondent’s admitted general awareness of the school’s policy of referring misbehaving students to an appropriate administrator for disciplinary action, and her concerns about being challenged and disrespected, Respondent’s testimony that she was unaware of Ms. Watson’s directive regarding students who refuse to hand over their cell phones is not credible. Student Detention, Search and Seizure Lee County School Board Policy 4.03 sets forth procedures related to searching a student’s person and property. Numbered paragraph (3) of the policy provides in part that “[a]n administrative staff member or an instructional staff member designated by an administrator may search a student’s person [and] personal belongings . . . if there is reasonable suspicion to believe the search will result in evidence the student has violated Florida Statute or School Board Rule or if the student consents to such search.” Respondent was neither an administrative staff member nor an instructional staff member with authorization to conduct student searches, and therefore her actions of physically searching A.O. and taking her cellphone violated Lee County School Board Policy 4.03. Aggressor or Victim Respondent challenges the instant proceeding in part on the theory that the facts demonstrate that she was the victim and merely acted in self-defense against the actions of a combative student. Contrary to Respondent’s contention, the credible evidence, as captured by the surveillance video, establishes that Respondent committed the initial act of aggression when she, without hesitation, lorded over A.O. and physically grabbed the student in an unauthorized effort to confiscate A.O.’s cellphone. While it is true that the student, after initially being pinned to the gym floor by Respondent, eventually freed herself from Respondent’s grip and in her agitated state committed reflexive acts of aggression towards Respondent, the credible evidence establishes that these events would not have occurred but for Respondent’s initial use of unauthorized and unreasonable force. Respondent, without question, had the right to protect herself against the aggressive countermeasures initiated by the student. However, it is also the case that under the facts of this case the student equally had the right to protect herself against Respondent’s initial acts of aggression.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of the violations alleged in counts one through three of the Administrative Complaint. It is further RECOMMENDED that the final order suspend Respondent's Florida Educator Certificate 725789 for a period of two years, to be followed by a one-year period of probation. The terms and conditions of Respondent's suspension and probation shall be established by the Education Practices Commission. DONE AND ENTERED this this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2018.
The Issue The issue presented is whether Respondent Shedeidra Edge should be suspended without pay and dismissed from her employment with Petitioner School Board of Palm Beach County, Florida, for the reasons set forth in the Petition filed in this cause.
Findings Of Fact Respondent Shedeidra Edge has been employed by Petitioner School Board of Palm Beach County, Florida, since 1999. Prior to August 2006 Respondent interviewed for an opening as a secretary in the student services office at Jupiter High School. During her interview she was advised that the busiest time of the day in that office was when the students arrived at 7:00 a.m. until the first class began at around 7:30. She was advised that there would be two secretaries in that office, each of whom would be responsible for certain of the duties required in that office. Since there were four assistant principals working in that office, each of the secretaries was informally assigned to two of them to prevent all four from assigning all of their work to only one secretary. She understood that one of the secretaries would begin work at 6:45 a.m. and the other at 7:00 a.m. Respondent was offered the 7:00 a.m. starting time since she would be the first of the two secretaries for that office to be hired. Respondent advised the principal and head secretary during the interview that she did not know if she could accept a job starting at 7:00 a.m. She subsequently telephoned the head secretary and advised her that she could accept the job and that she had worked out her transportation and daycare concerns. Respondent began working as a secretary at Jupiter High School in the student services office in August 2006. From the beginning she was late arriving at work almost daily. In an effort to assist Respondent and since Respondent was only a few minutes late, the principal adjusted Respondent's start time to 7:10 a.m. Respondent started arriving even later, and the principal, thinking that a slightly-later start time would solve the problem, adjusted Respondent's start time to 7:20 a.m., starting September 11, 2006. With that adjustment, Respondent began arriving even later most mornings. By January 2007 she was arriving an hour late regularly. Although Respondent sometimes called to say she would be late, sometimes she did not. She simply came in, carrying her breakfast which she had stopped to pick up on her way to work even though she was late. The impact of Respondent's regular tardiness on the operation of Jupiter High School was negative and significant. The before-school rush of business in the student services office could not be handled by one secretary. Accordingly, when Respondent was late, an employee from another office was taken away from that employee's duties to cover for Respondent. Those employees were unhappy about having to cover for Respondent, who appeared to them to be permitted to arrive at work whenever she felt like it with impunity. One of the responsibilities of the student services office involved retrieving textbooks from students withdrawing from school and accounting for lost or missing textbooks. Since Jupiter High School had to reimburse the school district for textbooks not returned, which would, in turn, impact the School's operating budget, Kent Heitman, one of the assistant principals to whom Respondent was informally assigned, was in charge of making sure that textbooks were returned to the school before approving a student's withdrawal and release of that student's records. It was Respondent's job, assigned to her by Assistant Principal Heitman, to make the initial contact with a student's parents when a student failed to return a textbook. She was to provide the parents with the information on the unreturned textbook, including the price for the parent to replace it. She was to record the information regarding her contact in a log set up for that purpose. She was responsible for keeping that log current, along with the student obligation list of students who owed money to the school for missing or lost textbooks, utilizing information obtained from teachers and the school's cashier. Heitman told Respondent that if she had a problem with any parent as a result of the initial contact she made, she was to turn that particular matter over to him, and he would handle it. Respondent refused to make the phone calls and refused to make the required entries on the log. She took the position that it was Heitman's job to do these things and not hers. Although Respondent was counseled regularly about the need to arrive at work on time, she failed to do so. Therefore, on November 10, 2006, Dr. Paula Nessmith, the Principal of Jupiter High School, issued to Respondent a Memorandum of Specific Incident regarding her continuing late arrivals at work. That Memorandum pointed out that from Friday, October 20, 2006, through Wednesday, November 8, 2006, Respondent had arrived at work on time only once. The Memorandum further advised Respondent that her failure to comply with the directives to arrive at work on time might result in further disciplinary action. On December 4, 2006, Principal Nessmith issued a Written Directive to Respondent, advising her that she had been late all but two days from November 13 through December 1, 2006. That Written Directive further advised Respondent that her continued late arrival would constitute insubordination and result in disciplinary action up to and including termination. On December 14, 2006, Assistant Principal Heitman again directed Respondent to call parents of withdrawing students to retrieve unreturned textbooks. He sent her three e- mail directives with the same instruction on December 15, 18, and 19, 2006. On December 22, 2006, Principal Nessmith gave Respondent a Written Directive as a result of Respondent's continued failure to call parents of withdrawing students who had not returned textbooks in accordance with Assistant Principal Heitman's directives of December 14, 15, 18, and 19 and Principal Nessmith's verbal directive of December 19. The Written Directive detailed the procedures that Respondent was to follow in performing that duty. It also advised Respondent that her continued refusal to comply would be considered insubordination and could result in disciplinary action up to and including termination. On January 16, 2007, Principal Nessmith gave Respondent a Verbal Reprimand with Written Notation for failing to follow the directives given Respondent on December 4 and 22, 2006. That Verbal Reprimand advised Respondent that her continued refusal to comply would result in further disciplinary action up to and including termination. On January 17, 2007, Principal Nessmith gave Respondent a Written Directive: Textbook and Student Obligation List Procedures and Responsibilities, detailing the procedure for Respondent to follow regarding textbooks and student obligations. The Written Directive again advised Respondent that her continued refusal to perform her job duties would be viewed as insubordination and would result in discipline up to and including termination. On January 25, 2007, Principal Nessmith gave Respondent a Written Reprimand for not complying with the January 17, 2007, Verbal Reprimand with Written Notation. The Written Reprimand noted that Respondent had arrived at work at least 40 minutes late every day since she had received the verbal reprimand and had failed to place and log telephone calls to the parents of withdrawing students who had not returned textbooks. It further advised Respondent that her continued refusal to comply with directives constituted gross insubordination and her continued failure would result in further disciplinary action up to and including termination. On February 2, 2007, Principal Nessmith issued to Respondent another Written Reprimand for not complying with the directives of January 17 and 25. The Written Reprimand noted that Respondent had arrived at work at least 40 minutes late every day since the January 25 Written Reprimand. It noted that Respondent still refused to follow the required procedures regarding unreturned textbooks as contained in the previous directives and reprimands. It noted that Respondent's continuing late arrivals and refusal to follow required procedures constituted gross insubordination, and that Respondent's failure to comply would subject her to further disciplinary action up to and including termination. Respondent continued to fail to comply. By correspondence dated March 7, 2007, Respondent was advised that a pre-disciplinary meeting to address her insubordination was scheduled. Respondent attended the meeting on March 12, 2007. At the conclusion of the meeting, the matter was referred to the Superintendent. By letter dated July 16, 2007, the Superintendent of Schools issued his Notice of Suspension and Recommendation for Termination from Employment advising Respondent that at the August 1, 2007, School Board meeting he would recommend that she be suspended without pay as of July 31, 2007, and terminated from employment as of August 15, 2007, for insubordination, subject to her timely request for an administrative hearing before the Division of Administrative Hearings. Upon the School Board's approval of the Superintendent's recommendation and upon Respondent's timely request for a hearing, this matter was referred to the Division of Administrative Hearings and the hearing was conducted as set forth above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered suspending Respondent without pay as of July 31, 2007, and terminating her employment as of August 15, 2007, for insubordination. DONE AND ENTERED this 7th day of January, 2008, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2008. COPIES FURNISHED: Arthur C. Johnson, Ph.D. Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Esquire Commissioner of Education Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Vicki L. Evans-Pare, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Shedeidra Edge 1460 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
The Issue : The issue to be resolved in this matter concerns whether the Okaloosa County School Board (Board) (District) (Petitioner) has just cause to terminate the Respondent's employment as a tenured classroom teacher with a professional services contract (PSC) within the meaning of Section 1012.33(1)(a), Florida Statutes (2007), for alleged misconduct in office.
Findings Of Fact The Respondent, Jerome McIntosh, is a 41-year-old divorced father of one. He obtained his entire education, prior to college, in the Okaloosa County School District. He played football and basketball at Niceville High School and subsequently attended and played football at Tulane University, obtaining degrees in sociology and physical education. Thereafter, the Respondent played professional football for a time and then subsequently worked in middle management positions with firms in the Seattle, Washington, area. He returned to Okaloosa County in 2003, to pursue a Florida Teaching Certificate, which he obtained, and embarked on a public school teaching and coaching career. The Respondent was hired as a teacher at Lewis Middle School (Lewis), by the principal, Dr. Linda Smith, for the 2003- 2004 school year. He continued to teach and coach at Lewis through the end of the 2007-2008 school year. During five years at Lewis he taught Eighth Grade Reading, Sixth Grade Honors World Cultures, and Sixth Grade Language Arts, as well as serving as the school's head basketball coach for five years, as assistant football coach for four years and as head football coach during the last year. Mr. Billy Mikel became principal at Lewis in January 2007. The Respondent attained a professional services contract status (tenure) and received a promotion to head football coach by Mr. Mikel. The Respondent's performance evaluations showed that he met expectations in every subject area, including the 2007-2008 school year evaluation, prepared by Mr. Mikel. He has been very successful as a basketball and football coach. His two teams have won four county championships. He has been asked to continue to be basketball and football coach each year and for the 2008-2009 school year, Mr. Mikel asked him to be head coach of both teams. He was working with both teams through early June 2008, up until the time of his suspension. The District has had an electronic resources use policy in effect for approximately the last five years. That policy does not prohibit the personal use of school computers by instructional personnel, and does not have objective internet use guidelines or prohibitions. Rather, it requires any use to "honor the ethical norms associated with the highest standards of professional conduct." See Petitioner's Exhibit 10 in evidence. The Respondent maintains he never saw that policy prior to the termination episode. He did learn that there was an Internet access filter in place by the District, because when he made some computer research inquiries that were teaching- related, he found that certain inquiries were blocked. The District maintains, District wide, a content filter (Websense) that prevents all District computers from visiting websites inappropriate for teacher and student access. The District also has a general personnel policy, 6-9, which requires the destruction of any anonymous written communication addressed to its employees when they receive such a communication. That policy was in effect, and applicable, according to the Respondent, to the AFF anonymous website flyer, when it was obtained by Mr. Mikel and his staff. It is also true that the anonymous website flyer was not addressed to any School Board employee; it was merely created and then distributed, apparently mostly on mailboxes, in neighborhoods of students and parents associated with Lewis. The Respondent had an intermittent romantic relationship with a fellow teacher by the name of Joni Shaw. This was when both were sixth grade language art teachers, with the same work schedules, during the 2007-2008 school year. The two had dated each other intermittently since approximately the end of 2006, and through the greater part of the 2007-2008 school year. Ms. Shaw tended to be emotional and extremely jealous and the relationship was intermittent for these reasons. She was jealous of the Respondent's time, and virtually any woman who communicated with the Respondent outside her presence. She became particularly upset by his pre-existing friendship with a mutual teaching colleague, Cindy Janazzo. This issue extended over the entire course of their dating relationship. Both the Respondent and Ms. Shaw had access to each other and to each other's classrooms during the work day. Ms. Shaw had access to the Respondent's school computer in his room and knew his computer password or log-on information. Ms. Shaw used the Respondent's computer occasionally, with his permission and/or in his presence. Sometime in August 2007, the Respondent discovered that Ms. Shaw had begun an email message, addressed to a teaching colleague at Lewis whom he knew, and another District employee he did not know. Ms. Shaw left the draft email message on the Respondent's computer. The Respondent did not notice the name of the employee he did not know (Arant Sutsko) on the address line of the draft message. He was, however, upset that Ms. Shaw had used his school computer without his knowledge when he saw the draft email message that already included the text; "if I were smart, I would have left it at that," referring to another document she sent him about why they should "break up." Mr. McIntosh then added several sentences to that draft message in which he chastised Ms. Shaw for using his computer without his knowledge and made a brief comment about the need for trust for a relationship to survive. After adding a short paragraph so criticizing Ms. Shaw for using his computer in this way, he simply added Ms. Shaw's name on the cc line and sent the resulting document. This created the erroneous impression that he had authored the entire document and consciously decided to send it to Sutsko. All the remaining emails in that sequence on the school system computer, which were found objectionable by the District, were sent by Ms. Shaw. Each of these emails was sent out by her very late at night or early in the morning and each included inappropriate, personal, and sexually-charged references. She made inflammatory remarks about the Respondent in the emails and threatened to harm his reputation and career. Upon receiving a complaint from Ms. Sutsko, Superintendent Tibbets asked Assistant Superintendent Rodney Nobles to look into the matter. Ms. Sutsko raised the concern some five months after the dates of the emails she received. Mr. Nobles spoke separately to Ms. Shaw and to Mr. McIntosh about the subject of the emails sometime in January 2008. Mr. Nobles informed the Respondent that he needed to refrain from sending out emails like that one from his school computer. He did not indicate to the Respondent that this was a formal disciplinary action or a particularly serious matter and the admonition was only verbal. The concern expressed by Mr. Nobles was only to the effect that the Respondent had sent an email of a personal nature on the school computer to someone he did not know. He only showed the Respondent the one email that was sent in error to Sustko, in cautioning the Respondent to be careful about how he used the District's email system in the future. The Respondent never again sent such an email. Ms. Shaw often spent time at the Respondent's house. She often stayed-over one or two nights per week at the Respondent's home. She sometimes stayed there by herself while he was running an errand or at athletic practice or some other event which kept him away from home for a time. At other times she would arrive before he did, as both traveled to his home from separate locations. She sometime used his home computer while he was at home doing other things. Mr. McIntosh and Ms. Shaw sometimes went shopping together and she was aware of his Visa cards, which he usually used as debit cards, although they could be used for credit purposes as well. He generally carried one of the debit cards in his wallet, leaving the other one at his home. The Visa cards were used to debit bills and purchases to the Respondent's checking account and Ms. Shaw had access to the card numbers and expiration dates due to her relationship with the Respondent, and her frequent presence in his home, sometimes when he was absent. She also knew his personal information such as age, birth date, height, weight, etc. Sabrina Hupp, at times pertinent hereto, was an 18- year-old student who knew Ms. Shaw because she dated Ms. Shaw's son, Tyler, during 2007-2008. Ms. Hupp was acquainted with the Respondent through her interactions with the Respondent and Ms. Shaw in the context of Ms. Hupp's dating relationship with Tyler and the Respondent's dating relationship with Joni Shaw during that year. On one day in April 2008, Sabrina was at the Shaw's home with Tyler when she observed Ms. Shaw viewing an AFF website entry that included a semi-nude picture of a man. Ms. Shaw stated that it was a picture of the Respondent. In her testimony, in evidence by deposition, as Respondent's Exhibit 26, she noted that Ms. Shaw had the user name/password to enter the website (the user name was "eatmyass2008"). She watched as Ms. Shaw responded to women who had sent messages expressing an interest in meeting the Respondent, based upon the AFF profile of him on the site. The only messages Sabrina Hupp observed on the website were incoming messages from women. She observed no messages emanating from the Respondent. Ms. Hupp was aware of the intermittent nature of the dating relationship between the Respondent and Ms. Shaw. Ms. Shaw was apparently a friend of the Hupp family. On May 27, 2008, Sabrina's brother passed away, and Ms. Shaw attended the visitation and the funeral after Sabrina's brother's death. The visitation for Sabrina's brother was held on the evening of May 30, 2008. The Respondent had planned to meet Ms. Shaw at his home after she returned from the visitation. In the meantime, the Respondent was at the district football jamboree while Ms. Shaw was at the visitation. The Respondent was delayed leaving the jamboree and Ms. Shaw arrived at his house well before he did. A neighbor, David Mains, observed Ms. Shaw's arrival and observed that while she was waiting for the Respondent to arrive Ms. Shaw became extremely agitated and repeatedly paced between the house and her car, angrily slamming her car doors and the Respondent's gate and garage door as she did so. Mr. McIntosh returned home later that evening and they spent the night together at his home. At one point during that evening, during a phone conversation, Ms. Shaw informed the Respondent that she had already left his home (apparently impatient due to his non- arrival there). She told him she was already some 15 miles away on the Mid-Bay Bridge. At that time the Respondent was only two to three miles from his house. The essence of their phone conversation was to the effect that Ms. Shaw would return to his home, and meet him there. However, when he traveled the two or three miles distance to his home, from the point where he had the phone conversation, upon his arrival he found Ms. Shaw already there and emerging from his shower. It is thus inferred that Ms. Shaw misled the Respondent about leaving his home before the Respondent arrived, and, implicitly, concerning how much time she had spent alone at his home that evening. After spending the night together at the Respondent's home Ms. Shaw was departing to attend the funeral on the morning of May 31, 2008, when she discovered that her car would not start. The Respondent and the neighbor, David Mains, helped to start her car, so she could get to the funeral. Mr. Mains is the neighbor who saw the activity of Ms. Shaw at the Respondent's home the evening before. When Mr. Main saw the Respondent working on Ms. Shaw's car in the driveway he inquired about the argument that he believed Ms. Shaw and the Respondent had the prior evening. The Respondent told him that there had been no argument and the Respondent had no knowledge of any angry outburst by Ms. Shaw. In any event, the Respondent and Ms. Shaw spent that weekend together and attended a cookout the next day, Sunday, June 1, 2008, at the home of friends. Cindy Janazzo is a teaching colleague of both the Respondent and Ms. Shaw. She sent a text message to the Respondent during the cookout which aroused suspicion in Ms. Shaw. Ms. Shaw apparently felt that the text message was indicative of some private relationship between Ms. Janazzo and the Respondent, or was "code" for some understanding between them and she confronted the Respondent in an angry way about it at the cookout. In the text message Ms. Janazzo had told the Respondent "not to eat too much" even though, supposedly, she was unaware that the Respondent was at a cookout at the time. In any event, Ms. Shaw confronted the Respondent about the message in a loud hostile manner in front of the Respondent and his daughter. The Respondent became very upset at Ms. Shaw's hostile behavior in front of his daughter and friends and so he abruptly left the party, further infuriating Ms. Shaw. A day or two after the Sunday afternoon argument between the Respondent and Ms. Shaw, either on Monday, June 2 or Tuesday, June 3, someone other than the Respondent distributed a flyer in neighborhoods near Lewis Middle School, that alerted residents to the existence of an AFF website profile entry that purportedly presented a danger to the school students. The flyer encouraged those who received it to open that website and find the entry with the password and the user ID information provided in the flyer. The flyer included a fully clothed picture of the Respondent standing on a football field. The semi-nude photograph of the Respondent that had been stored in his home computer could be viewed on the AFF website entry referenced in the flyer as well. A resident who came into possession of one of the flyers purportedly notified school officials of it on the morning of Wednesday, June 4, 2008. Upon being alerted to the existence of the flyers, the school officials gathered as many of the flyers as they could to try to prevent their circulation in the community. The principal, Mr. Mikel, immediately used the secure information (password and user name identification), depicted on the flyer concerning the AFF website, to see what was on the site that involved the Respondent. He thereafter called the Respondent to his office to ask him if the semi-nude photograph that appeared on the site was his photograph. The photograph depicted a man from the neck down to the legs (no facial view) seated, unclothed, but holding his hands over his genital area. Both Mr. Mikel and later Mr. Foxworthy gave the Respondent several opportunities to tell them that the picture was not a picture of him, because it seemed to them that the picture depicted a white man. The Respondent, however, in all candor, told them a number of times that it actually was his picture. The Respondent, however, consistently denied that he was responsible for the website entry. The District officials who viewed the website did not ask for or obtain permission from the Respondent or anyone else to use the password and user ID to gain access to the private, secure website entry which was attributed to the Respondent. They did not get his permission to access private, secure billing information associated with the creation of that website (credit card or debit card information). When Mr. Mikel asked the Respondent about his credit cards in the meeting on June 4, he did so because he had already accessed the billing information associated with the website entry's creation and thus learned about the credit card and card number which had been used to pay the bill for the site. In response to that question, the Respondent told Mr. Mikel that he only had a debit card, because he used his Visa card for debit purposes primarily. The Respondent then showed the Visa card he normally carried in his wallet telling Mr. Mikel that it was a debit card. The Respondent maintains that he did not think at the time about the other card that he normally kept at his home, also using it primarily as a debit card. The Respondent was then asked by Mr. Mikel to stay home for the rest of that week, which was during part of the post-planning period. The Respondent was busy that week grading exams and entering grades on the computer. He returned for the rest of the post-planning session the following week (June 9-11, 2008). He states therefore, in essence, that he did not give further consideration to the earlier question by Mr. Mikel concerning his credit card. He maintains that he did not intentionally deceive Mr. Mikel about the debit and credit card questions and answers, but rather had simply not thought about the other card, which he normally kept at home, nor the fact that both cards could either be used as credit or debit cards. The school administrators in question informed the Respondent, the morning of June 4, 2008, of the Aff website entry. He professes not to have known of it before that time and stated that he never saw the website entry until he asked for and was provided a copy of the flyer by Mr. Mikel a day or so later, so he could close down/delete the AFF profile in question. Ms. Shaw, however, as shown by Sabrina Hupp's testimony, knew of the AFF website more than a month before the flyer was distributed in the community. As Ms. Hupp testified, sometime in April 2008, Ms. Shaw entered the website in question, was perusing it and even responded to some of the comments of women who had responded to the website. Ms. Shaw had ready access to the Respondent's home computer during times pertinent to this case in the Spring of 2008, where the semi-nude photo of the Respondent was stored. Ms. Shaw knew of the existence of the website entry long before the flyers were distributed and she knew of and had access to the Respondent's Visa debit/credit cards, as shown by the above- found facts, concerning her frequent sojourns at the Respondent's home and their shopping together. She had detailed personal information about the Respondent and possessed all information necessary to have created the website and the flyers. Moreover, Ms. Shaw had threatened to cause harm to the Respondent's professional standing previously, in an email. The flyers were publicly distributed, and the related website made public, only one or two days after the hostile argument situation arose at the cookout on Sunday afternoon, June 1, 2008. Ms. Shaw and the Respondent had a stormy, intermittent dating relationship through 2007 and the first half of 2008. She had a history of becoming quite jealous and upset regarding contacts of any nature by other women with the Respondent. She seems to be a person possessed of a hot temper and dramatic personality. On balance, the preponderant, persuasive evidence underlying the above Findings of Fact does not, in light of all the above-found circumstances, establish that the Respondent created the AFF website entry. The proven circumstances of the above Findings of Fact show that there is a substantial likelihood that Ms. Shaw created the AFF website entry and distributed the flyers in question. The above Findings of Fact show significant motive and opportunity in that regard on her part. The Respondent had a duty-free lunch period between 10:45 and 11:10 on each day at Lewis. He sometimes ate lunch alone in his classroom and on some of those occasions explored internet Sports Illustrated and Fox Sports websites seeking sports-related and general information of interest to him on the school computer. On some occasions he "clicked" on items or stories of interest that took him indirectly to other websites, including the website "Bugehoobs" on one occasion. In the course of intermittent internet browsing the Respondent viewed many images of women in swim suits or otherwise scantly clad over a period of several months. There were 1000 or more other images, not of that nature, that appeared on web pages he accessed over the several month period. The District had an Internet filtering system to block particular sites or images considered to be inappropriate to be viewed on school computer systems. The Respondent was not proven to have ever attempted to by-pass the District's Internet filtering system. The images he did view on the computer system were not blocked by the filtering system, there was no restriction of access to the sites and images he viewed. The Respondent never viewed any nude or pornographic images on any occasion on the school's computer. This is undisputed. Temporary Internet File (TIF) images are created automatically as to any image appearing on an access page, regardless of the reason the page was accessed. They are not permanent files created or monitored by a computer user and can be deleted by anyone who knows how to do so. The School District's computer technician, Mr. Mitchell, was unable to obtain the "websense report," which could be generated by the District's computer system, because of time, space, and server constraints. It would be the best source of information about the Respondent's school computer, including the sites he had accessed with that computer. Because of this Mr. Mitchell drew erroneous conclusions, based upon assumptions from his TIF review, to the effect that the Respondent had tried to bypass the District's web access filter. Mr. Mitchell informed Mr. Foxworthy and Mr. Mikel that many TIF images he found on the school computer in the Respondent's custody were pornographic in nature. Foxworthy thereupon informed the Respondent that he could either resign or be terminated for viewing pornographic images, before Foxworthy had even seen the images, later described by himself as "old- fashioned cheesecake." Mr. Foxworthy first met with the Respondent on Thursday, June 12, 2008, after the end of the school year. This was before Mr. McIntosh had been informed about anything concerning alleged inappropriate website access concerns with regard to the school computer. Mr. Foxworthy told the Respondent he could resign or be terminated, but not because of the private AFF website issue, but rather for accessing pornography on his school computer. Mr. McIntosh knew that was not true and asked to see the alleged pornographic images. A meeting for that purpose was scheduled and took place on Monday, June 16, 2008. With disciplinary action in the offing, the Respondent sought the assistance of a union representative regarding the proposed termination, after that June 12, 2008, meeting with Mr. Foxworthy. He attended the subsequent scheduled meeting on June 16, 2008, accompanied by union Executive Director Greg Butler. Also in attendance at the meeting were Mr. Mitchell, the District's computer technician and Mr. Mikel. Mr. Mitchell showed the Respondent and Mr. Butler a substantial number of randomly selected, purportedly objectionable swim suit images at that meeting, which were among a larger number of non- objectionable images. Mr. Butler and Mr. Mitchell confirmed that the remaining objectionable images were of a similar nature to those Butler had already viewed and all were considered non- pornographic. After leaving the meeting Mr. Butler called Mr. Foxworthy to find out if he had seen the objectionable images and learned that he had not. During their phone conversation Mr. Foxworthy acknowledged that he should view the images before terminating the Respondent. In fact, around the time of these events a swim suit competition was being conducted by the Northwest Florida News Herald, a newspaper of general circulation in Okaloosa County. The swimsuit competition included images of many women in swimsuits which were similar in nature to the allegedly objectionable images Mr. Butler was shown by Mr. Mitchell at the meeting of June 16, 2008. None of the websites the Respondent occasionally accessed, such as the Sports Illustrated or Fox Sports websites nor even the Bugehoobs website he accessed one time, indirectly, (by clicking on a news item concerning Tiger Woods) was blocked by the District's internet filtering system at the time the Respondent accessed them. None of the images he accessed could be deemed to be any image of pornography. Ms. Alexis Tibbetts, the Superintendent, formerly was the principal at Ft. Walton Beach High School. While she was the principal there she supervised a high school teacher by the name of Michelle McVay. During the approximate time the events happened leading up to the proposed termination of the Respondent, in the Spring of 2008, Ms. McVay voluntarily entered herself in the area daily newspaper's on-line swimsuit competition, by submitting a suggestive swimsuit photo or image of herself to the newspaper, through its website. Ms. Tibbets and the District took no disciplinary action against Ms. McVay, although it was suggested that she remove the photograph from the newspaper's website. The images entered in the swimsuit contest, including Ms. McVay's, were similar in nature to those the Respondent is charged with viewing on the school computer during his duty-free lunch hour (his own time). Ms. Tibbets has also known Ms. Shaw personally for some 15 years. As superintendent she once helped Ms. Shaw out of a serious legal problem involving potential prosecution for writing bad checks to the District. In contrast, Ms. Tibbets had never met the Respondent before the events in question. The events that triggered the investigation, the distribution of the flyers, happened within two days of the end of the school year. It generated very limited public awareness, as most of the flyers were retrieved. Newspaper coverage of these matters was limited to a period of only a few days after the Board's action in July 2008, and TV coverage was minimal or non-existent. Seven months elapsed between the events in question and the hearing. The Respondent has performed both his teaching and coaching duties well, over the five years he has been employed by the District. He was and remains well-liked and respected in his school community and there are no written records of any parent or student complaints or student removal requests received by the District concerning the Respondent in the aftermath of these events. The Respondent has demonstrated by preponderant, persuasive evidence that he can still be an effective teacher and coach employed by the Petitioner. The Respondent has not been accused of any criminal violation in conjunction with the matters in question. There has been no arrest on criminal charges and no activity he is accused of committing, with regard to the issues in this case, involves students in any way. The Respondent did not engage in misconduct in office in the context of his use of the internet on his personal school computer or school laptop. He did not violate school or District policies in the context of the allegation that he created a profile on a private, secure, adult website, as no student was involved, no school computer or resources were used and it was purely a private matter that happened to be made known by someone other than Mr. McIntosh. None of the Respondent's actions alleged to have been improper, individually or collectively rise to the level of misconduct in office or immorality, if such a charge were allowed to survive the Respondent's objection on due process grounds.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered dismissing the subject charges and reinstating the Respondent with back pay and related benefits, retirement credits, supplemental coaching pay, as described above, and that he be reimbursed for all categories of lost benefits that come within the proper scope of a "make whole" remedy. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2009. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Dr. Alexis Tibbetts Superintendent Okaloosa County School Board Administrative Complex 120 Lowery Place Southeast Ft. Walton Beach, Florida 32548 Michael E. Foxworthy Chief Officer, Human Relations Okaloosa County School Board Administrative Complex 120 Lowery Place Southeast Ft. Walton Beach, Florida 32548
The Issue The issue is whether Petitioner has just cause to terminate Respondent’s employment for gross insubordination, deficient performance, and conduct unbecoming a school board employee.
Findings Of Fact Petitioner employed Respondent continuously from December 6, 1993, through her termination on January 12, 2000. During her entire term of employment, Respondent was employed as a Secretary II. Respondent has a bachelor of science degree in marketing and business from Liberty University in Virginia. Prior to her employment with Petitioner, Respondent had worked as a secretary, including at Florida National Bank and, while living out-of- state, First Pennsylvania Bank. Respondent described her work with Petitioner as enjoyable. She testified that it involved word processing, answering the telephones, and filing. Respondent’s initial assignment was to provide clerical support for exceptional student education. This work required, among other things, considerable speaking on the telephone to coordinate the work of district-office workers with the various schools that they served and typing of school psychological reports concerning students. Repeatedly, Respondent demonstrated problems with accurate and timely typing of school psychological reports, declined to take school-related telephone calls from the switchboard, and reported to work late. When her supervisor conducted an informal conference, Respondent explained that she was often late to work due to a conflicting school schedule of her child, so the supervisor agreed to start Respondent’s workday one-half hour later. When Respondent’s tardiness did not improve, the supervisor had a formal conference for the record (CFR). At the CFR, which took place on February 27, 1995, the supervisor warned Respondent that she must report to work on time and do her job while at work. During this period, Respondent would be late 10-15 times within a 20-day pay period. These occasions of tardiness were substantial, not a couple of minutes, but 30-40 minutes. Even after the supervisor postponed Respondent’s starting time, Respondent continued to report to work late. During this period, Respondent resisted answering the phone and typing. The supervisor had one primary typist, whose typing speed was considerably better than the typing speed of the other secretaries, so the supervisor directed her to do nothing but type school psychological reports. The supervisor directed the other three or four secretaries, of whom Respondent was one, to type school psychological reports when time permitted and to answer the telephone to assist district-office field workers, school personnel, and parents. Respondent resisted this dual assignment. The supervisor could not recall having another CFR for any other employees during the period that she supervised Respondent. Shortly after the February 27 CFR, Respondent’s supervisor transferred to a different area and did not have further contact with Respondent. Respondent’s new supervisor also had problems with Respondent’s job performance. On June 23, 1998, the supervisor completed a written evaluation of Respondent’s job performance and rated her unsatisfactory in knowledge (specifically, ability to communicate effectively) and interpersonal skills (specifically, positive relationship with the public and harmonious relationship with the staff). The overall performance rating was unsatisfactory with the following note: “Additional opportunities will be provided to Annet to improve her interpersonal skills that interfere with the day-to-day operations of the office. If not successful, stronger measures will be taken.” Protesting the inaccuracy of the evaluation, Respondent refused to sign the form. The new supervisor had observed Respondent’s communications with parents on the telephone and staff in the office. Respondent was often rude with parents, so the supervisor talked to her about how to answer the telephone, giving her suggestions for improvement. Respondent’s relationship with her coworkers suffered from her disruptive behaviors, such as loud singing and talking. At one point, Respondent’s relationship with one coworker had so deteriorated that it became necessary for her supervisor, in September 1998, to direct Respondent to change desks. However, when directed to change desks, Respondent refused, forcing her supervisor to reduce the directive to writing. About four months later, to give Respondent a fresh start elsewhere, her supervisor facilitated Respondent’s transfer to a school that served as a center for exceptional student education. The supervisor did not fill the vacancy in the district office created by the transfer, nor did she fill an existing vacancy at the school; essentially, the supervisor merely transferred the physical location of Respondent’s job position. By memorandum dated January 12, 1999, Respondent’s supervisor advised Respondent of the transfer and her new duties, which again included typing school psychological reports. The memorandum also informed Respondent that her workday hours would remain 8:00 a.m. to 4:30 p.m. with lunch from 12:30 p.m. to 1:30 p.m. and breaks starting at 10:15 a.m. and 3:00 p.m. About one week after Respondent reported to the school for her new assignment, the principal gave her a written schedule showing Respondent’s hours as 8:00 a.m. to 4:30 p.m. with one hour for lunch and 15-minute breaks starting at 10:00 a.m. and 2:30 p.m. The schedule also assigned tasks to be performed during different times of the day. These tasks included typing, filing, telephone work, and assisting parents, staff, and students. These tasks included one block of two hours and fifteen minutes devoted to performing district-office tasks, but while remaining at the school to which Respondent had just been reassigned. Respondent was dissatisfied with her new assignment, preferring to work at the district office where she had been assigned. Respondent’s new supervisor, the school principal, noticed immediately that Respondent had trouble interacting appropriately with staff and parents, typing school psychological reports accurately, and answering the telephone when it rang. The principal corrected Respondent’s style of answering the telephone, informing her that she was to identify the school and herself, offer assistance, and offer to take a message if the person being called is not available. Instead, the principal heard Respondent repeatedly deal with callers brusquely, such as by stating, “They’re not in the office. Call back later.” While at the switchboard, Respondent repeatedly sent callers to the wrong extension. On April 15, 1999, the principal had a CFR with Respondent. The next day, the principal gave Respondent a written memorandum reflecting their discussions. The memorandum identifies nine specific areas of Respondent’s job performance, to which the principal expressed serious concerns. For each of these areas, the memorandum supplies a detailed list of behaviors and actions to do and not to do. For example, the form directs Respondent to speak with others pleasantly, politely, and professionally--not argumentatively, sarcastically, or caustically. Another item directs Respondent to spell check and proof read all typed materials--not submit uncorrected typed materials. Another item directs Respondent to remain engaged in work while at work--not doodle, read magazines, or make personal telephone calls while at work. The memorandum documents informal conversations on February 4 and March 17 between the principal and Respondent in which the principal had already counseled Respondent about her rudeness and idleness, including one conversation in which the principal noted, “You had to be told in excruciating detail how to perform the most mundane of tasks.” The memorandum notes that Respondent had characterized the principal’s assessment of her work as unfair, and the principal had warned her that a failure to improve her job performance and her relationships with staff and parents would jeopardize her future employment with Petitioner. The memorandum notes that the CFR of the preceding day had ended with the comment from Respondent: “If you need to let off steam you need to find another way to do it. This is ridiculous.” During this period of time, Respondent had informed the principal that it was not Respondent’s job to proofread the material that she typed and, thus, she would not spell check these documents. On at least one occasion, Respondent mistyped a form, confusing the specific learning disability and severely emotionally disturbed classifications of exceptional students. During one month, every single item that Respondent typed had to be returned to her for corrections--at least once and sometimes more than once. Respondent resisted the principal’s criticisms by telling the principal to "get a life" and that the principal did not know what she was doing. In front of one parent, Respondent said that the mother should be doing a better job with the child. Many of Respondent’s statements of these types to supervisors, coworkers, and parents were made in the presence of students. The principal found Respondent repeatedly not working or reading a magazine when she had work to do. In response, Respondent would assert that she had not been told to do anything, and the principal each time reminded her that there was always filing to be done. At least four times over two months, the principal found Respondent on a personal call while parents or students were waiting for her to take care of their needs. One time, when the principal asked her if she could break off the call and take care of the people waiting, Respondent merely shrugged her shoulders and rolled her eyes, not responding whether the call was an emergency and leaving the principal to deal with the waiting parent. One morning, the principal walked into the office and observed the registrar working with the parent and the telephone start to ring. The registrar asked Respondent to answer the phone, but she did not. After the third ring, the principal answered the phone. Another time, the registrar was busy at the counter with a parent when she was summoned to the telephone. After a few moments, the registrar put the caller on hold and asked Respondent to remove an item from the mail because the mail room attendant was approaching. Refusing to comply with the request, Respondent told the registrar, “I didn’t put it in there. I’m not taking it out.” A distinct act of insubordination took place after the April 15 CFR and April 16 memorandum. On this morning, the principal entered the office and found the staff extremely busy, such as obtaining materials for teachers. Respondent was issuing admission slips for tardy arrivals. The telephone was ringing, and staff was juggling their other activities as best they could while still answering the phone. However, Respondent, although seated next to the switchboard, was not answering the phone at all. When the principal asked her to answer it, Respondent loudly replied, “Do you think I can do two things at once?” The whole office became quiet, as a teacher answered the telephone. The principal directed Respondent to start answering the phone, but four more calls came in, and Respondent refused to answer them. More memoranda followed. On May 25, 1999, the principal provided Respondent a detailed memorandum with an evaluation. The memorandum covers the same items already discussed. The evaluation is unsatisfactory in every major category. A memorandum dated May 27, 1999, accompanying a CFR of the same date, discusses, among other things, the telephone incident described in the preceding paragraph and reemphasizes that Respondent is the first person responsible for answering the telephone. Another CFR took place on June 9 with another memorandum dated the next day at which the same issues are discussed. The principal provided Respondent with a detailed list of recorded deficiencies, prescriptive means by which to correct them, recommended resources, and deadlines. The principal extended the deadlines for performing fairly undemanding tasks, but Respondent declined to perform them. At the start of the 1999-2000 school year, Respondent routinely came to work late. She was late every day in September, rarely arriving less than 30 minutes late and once over one hour late. On Monday, October 4, 1999, the principal provided Respondent with a memorandum documenting the days and extent of her tardy arrivals. The memorandum documents a discussion between the principal and Respondent on the preceding Friday, October 1. The memorandum notes that Respondent claimed to have changed her schedule, on her own authority, and the principal had informed her that the principal, not Respondent, had the sole authority to set her schedule. The memorandum documents that the principal had suggested that Respondent follow established procedure to change her starting time, but, until and unless the principal changed the time, Respondent was to report to work at 8:00 a.m., as she was always required to have done, on the following Monday, October 4. The memorandum notes that Respondent responded that she had to take her daughter to school and would not be reporting to work at 8:00 a.m. The memorandum documents that, on the morning of Monday, October 4, Respondent called in at 8:40 a.m. saying she had had car trouble and would be late; she arrived at 9:15 a.m. On October 5, the principal conducted another CFR and issued another memorandum, dated October 5. Respondent did not report to the CFR when directed, and the principal had to have her assistant principal get Respondent. After initially declining to attend, Respondent appeared at the CFR, 15 minutes late. When the principal asked Respondent to take a seat, she replied that she would prefer to stand, and did so. Disputing the date set for the CFR, Respondent stated that she would not remain. At the conference, the principal read Respondent the following definition of gross insubordination or willful neglect of duties: “a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.” Respondent unsuccessfully attempted to change her schedule to postpone her starting time to 8:30 a.m. Respondent was late to work every day from September to January. Each day, she would leave work at 3:40 p.m. to pick up her daughter and return to work late, usually at 4:05 or 4:10 p.m. However, when the principal offered to shorten her day by one-half hour, so as to allow her to leave work one-half hour earlier, Respondent refused to shorten her lunch. On October 6, 1999, the principal issued Respondent a reprimand for failing to finish her prescriptive activities within the extended deadlines. Giving her until October 26 to complete them, the reprimand warns: “Failure to comply with this directive will constitute gross insubordination and may lead to further disciplinary action.” On October 7, the principal sent her assistant principal to summon Respondent to the principal’s office to provide Respondent with the above-described documents. Respondent refused to come. The principal approached Respondent and asked her to come to the principal’s office, but Respondent replied that she had no intention of reporting to the principal’s office ever again and the principal was harassing her. The next day, Respondent did not report to work. When Respondent failed to meet the October 26 deadline, the principal issued a memorandum, dated October 28, citing her for gross insubordination. This memorandum effectively marked the end of the principal’s involvement with Respondent. Overall, Respondent’s repeated insubordination and carelessness had undermined the morale among staff at the school. The principal found it hard to assign work to other secretaries, who rightly felt that they were carrying Respondent’s load. The atmosphere in the office became strained. The principal could not possibly have done anything more to help Respondent do her work. It was not an issue of ability, but of a lack of effort and refusal to make the effort. At one point, Respondent told the principal that she found it demeaning to be told to file and answer the telephone given her high-level skills. Attempts by the district office to conduct CFRs were met by Respondent’s defiance: she did not attend any of the three scheduled meetings. By letter dated January 13, 2000, Petitioner suspended Respondent, effective January 12, 2000, and initiated this proceeding to terminate Respondent’s employment. Respondent is subject to the Contract between Petitioner and the United Teachers of Dade (Contract). Contract Section 3.D provides that Petitioner may terminate a covered, noninstructional employee, such as Respondent, for “just cause.” Section 3.D defines “just cause” as including: “misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009.” Petitioner has proved that Respondent is guilty of gross insubordination.
Recommendation It is RECOMMENDED that The School Board of Miami-Dade County, Florida enter a final order terminating Respondent’s employment. DONE AND ENTERED this 7th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2000. COPIES FURNISHED: Roger C. Cuevas, Superintendent The School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue Room 912 Miami, Florida 33132-1308 Timothy A. Pease The School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Joseph F. Lopez 250 Bird Road, Suite 302 Coral Gables, Florida 33146
